Federal law does not preempt the Connecticut medical marijuana statute’s prohibition on employers’ firing or refusing to hire qualified medical marijuana patients, even if they test positive on an employment-related drug test, the U.S. District Court for the District of Connecticut has held. Noffsinger v. SSC Niantic Operating Co., LLC, d/b/a Bride Brook Health & Rehab. Ctr. (D. Conn. Aug. 8, 2017). This is a case of first impression that may have potentially sweeping implications for employers who conduct workplace drug testing.  The court also held that the Connecticut Palliative Use of Marijuana Act (PUMA) provides a private right of action for individuals claiming to be discriminated against as a result of their qualifying patient status, that PUMA’s anti-discrimination provision does not violate the Equal Protection Clause, and that employers regulated by federal laws are not exempt from the state statute’s discrimination prohibitions.

Background

According to the allegations in her complaint, Katelin Noffsinger is a registered qualifying patient who has used medical marijuana since 2015, when she was first prescribed a daily dose of Marinol (synthetic marijuana in capsule form) to treat symptoms related to post-traumatic stress disorder (PTSD).

In July 2016, Noffsinger was given a verbal offer for a position as Director of Recreational Therapy at Bride Brook, a nursing facility in Niantic, Connecticut. Shortly thereafter, she was asked to undergo a routine pre-employment drug screen. Noffsinger then disclosed to Bride Brook that she was diagnosed with PTSD and that she took prescription marijuana as a “qualifying patient” under PUMA. Noffsinger provided Bride Brook a copy of her patient registration certificate, explaining that she only took Marinol in the evenings, before bed, and thus would not be impaired during the workday. Noffsinger offered to provide additional information if necessary, though none was requested by Bride Brook. The day before Noffsinger was scheduled to begin work, Bride Brook rescinded her job offer because she tested positive for marijuana.

Noffsinger filed a complaint in state court, alleging a violation of PUMA’s anti-discrimination provision. The provision states, “[n]o employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient.” After removing the case to federal court on the basis of diversity jurisdiction, Bride Brook moved to dismiss Noffsinger’s complaint. The court denied the motion for these reasons:

No Federal Preemption

Bride Brook argued that PUMA is preempted by the Controlled Substances Act (CSA), Americans with Disabilities Act (ADA), and Food, Drug and Cosmetic Act (FDCA) based on the theory of “obstacle preemption,” under which state laws are preempted or invalidated if they “stand as an obstacle to the objectives of Congress.” To prove obstacle preemption, a party must show the state law creates an “actual conflict” with an overriding federal purpose and objective — mere tension is generally insufficient. Here, the court held that PUMA did not pose a conflict with any of the cited federal statutes:

• CSA: Bride Brook argued that an actual conflict exists between PUMA (which affirmatively authorizes the medical use, possession, sale and distribution of marijuana) and the CSA (which classifies marijuana as a Schedule I substance with no known medicinal purpose and thus makes it a federal crime to use, possess, or distribute marijuana). The court rejected this argument as “overbroad,” holding that, because Noffsinger’s claim is limited to PUMA’s anti-discrimination provision (as opposed to seeking enforcement of the statute as a whole), Bride Brook must prove a conflict between that specific provision and the CSA, not between the CSA and PUMA more generally. The court held that no such conflict exists because the CSA does not prohibit employers from hiring or employing individuals who use illegal drugs. It noted the limited nature of its inquiry distinguished this case from cases in other states that held CSA preempted the state’s medical marijuana law, as none of those state statutes had specific provisions prohibiting employment discrimination and thus required a broad preemption analysis.
• ADA: Bride Brook argued that PUMA’s anti-discrimination provision was preempted by the ADA, which expressly excludes current users of illegal drugs from the ADA’s definition of a qualified individual with a disability. The ADA also provides that employers may test applicants and employees for illegal drug use and may prohibit the illegal use of drugs in the workplace. The court held that the ADA’s requirements regarding workplace drug use were irrelevant, as PUMA does not authorize individuals to use marijuana while at work (nor did Noffsinger request permission to do so). Moreover, the court reasoned that the ADA’s silence on an employer’s ability to prohibit the use of illegal drugs outside of the workplace “is a powerful indication that the ADA was not meant to regulate non-workplace activity, must less to preclude the States from doing so.” Finally, the court noted PUMA’s anti-discrimination provision was protected by the ADA’s savings clause, which states the ADA shall not be “construed to invalidate … [any State law] that provides greater or equal protection for the rights of individuals with disabilities ….”
• FDCA: The court dismissed Bride Brook’s argument that PUMA was preempted by the FDCA, which prohibits the sale or distribution of medications that have not been approved by the Food and Drug Administration. As with the CSA, the court held the FDCA does not regulate employment and thus does not preempt PUMA’s employment-related provisions.

Private Cause of Action

Bride Brook also moved to dismiss the Complaint on the grounds that PUMA does not provide for a private right of action. While the parties agreed that PUMA does not specifically allow for such a right, the court nevertheless held that such a right was implied, based on an analysis of the statute, legislative history, and applicable Connecticut precedent. Without a private right of action, the court held, PUMA’s anti-discrimination provision would have no practical effect because there is no other enforcement mechanism.

No Broad Exemption for Federal Contractors, Other Federally Regulated Employers

Bride Brook argued that it was exempt from PUMA’s anti-discrimination provision, which prohibits employers from terminating or refusing to hire a qualifying patient “unlessrequired by federal law or required to obtain federal funding.” (Emphasis added.) As a nursing facility, Bride Brook is subject to federal regulations that require compliance with federal laws, and, as marijuana is illegal under federal law, Bride Brook reasoned it would be in violation of these regulations if it hired Noffsinger, a known marijuana user.  The court characterized this argument as “border[ing] on the absurd.” It held that “the act of merely hiring a medical marijuana user does not itself constitute a violation of the CSA” or any other federal law.

Equal Protection Clause

In the event PUMA was not preempted by federal statute and allowed for a private right of action, Bride Brook argued that the statute nevertheless violates the Equal Protection Clause, as it requires employers to treat medical marijuana users differently than similarly situated recreational marijuana users. Dismissing the argument as “frivolous,” the court held that Connecticut’s legislature could rationally distinguish employees who use marijuana for medicinal purposes under a physician’s supervision from “people who use marijuana at their whim to get high.”

Implications for Employers

Noffsinger complicates an already complicated landscape for employers who conduct drug testing for marijuana, particularly as the decision marks the third time in four months that a court has ruled against employers in drug testing cases involving medical marijuana users. (The others were Massachusetts and Rhode Island state courts.)  Noffsinger is the first time a federal court has considered whether the CSA preempts a state medical marijuana law’s anti-discrimination provision, and the result is a warning to employers with policies that include categorical denial or termination of employment because of a positive drug test. Employers in Connecticut and elsewhere should consider the marijuana laws affecting their workplaces now, before an issue arises.