By Christine M. Jensen
This information is provided for educational purposes only.  Reader retains full responsibility for the use of the information contained herein.

More than one-half of US states have passed laws permitting the use of marijuana. If you are managing a workforce in one of these states, you need to become familiar with this law, review your employment policies to ensure compliance, and prepare yourself to address employment issues bound to arise when an individual tests positive for marijuana.

State vs. Federal Law

Marijuana remains a Schedule 1 Drug under the Federal Controlled Substances Act (CSA), placing it in the same category as heroin. As such, regardless if your state has legalized marijuana for general or medical-only purposes, possession of it remains a federal crime. This conflict between state and federal law will cause many complications not only in managing employees who test positive for marijuana in the workplace, but also in hiring practices for job candidates who test positive in a pre-employment drug screening.

Noffsinger v. SSC Niantic Operating Co.

In Connecticut, a federal trial judge recently ruled that an employer can be sued by a prospective employee after withdrawing a conditional offer of employment due to a positive drug screening for marijuana. In Noffsinger v. SSC Niantic Operating Co., LLC, d/b/a Bride Brook Health & Rehab. Ctr. (No. 3:16-cv-01938 (D. Conn. Aug 8, 2017)), a case of first impression, the court held that the federal law does not preempt the Connecticut Palliative Use of Marijuana Act (PUMA) which states in part: “No 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….”

The Connecticut Court also held that:

  • PUMA’s anti-discrimination provision does not violate the Equal Protection Clause;
  • Employers regulated by federal laws are not exempt from the state statute’s discrimination prohibitions; and
  • PUMA provides a private right of action for individuals claiming to be discriminated against as a result of their qualifying patient status.

Marijuana, PUMA, and the ADA

The court rejected Bride Brook’s claim that PUMA conflicts with the CSA since it does not prohibit employers from hiring or employing individuals who use illegal drugs. PUMA is unique from laws in other states because it has specific provisions prohibiting employment discrimination. The court also rejected the claim that PUMA was preempted by the Americans with Disability Act (ADA), which excludes current users of illegal drugs from the ADA’s definition

of a qualified individual with a disability. PUMA does not authorize individuals to use illegal drugs at work and is silent on an employer’s ability to prohibit the use of illegal drugs outside of the workplace. Lastly, the court dismissed Bride Brook’s argument that PUMA was preempted by the Federal Food, Drug, and Cosmetics Act (FDCA). The FDCA, which prohibits the sale or distribution of medications that have not been approved by the Food and Drug Administration, is silent about employment. Therefore, the court held that the FDCA does not preempt PUMA’s employment-related provisions.

Employers covered under the Americans with Disabilities Act (ADA) are prohibited from discriminating against a qualified employee on the basis of a disability. Employers are required to provide a reasonable accommodation to a disabled employee so the employee can perform the essential duties of the job, provided that the accommodation does not impose an undue hardship on the employer. Given Noffsinger, similar situated individuals may make a claim under the ADA that they were not provided with a reasonable accommodation to perform the essential duties of a job.

Conclusion

Given the safety sensitive positions in many companies and the nation-wide acceptance of marijuana use, having an appropriate drug testing program in place is more important than ever. Employers in all states should mark Noffsinger as notice to begin preparing for similar cases. Employment policies that deny or terminate employment because of a positive drug screen for marijuana need to be reexamined in light of the marijuana laws in the state, as well as decisions such as Noffsinger.

If you have questions about the Noffsinger ruling and its implications to your workplace, contact the Current Consulting Group, LLC (CCG) at 215.240.8204. Our knowledgeable and professional staff welcome the opportunity to work with you.

(C) 2017 The Current Consulting Group, LLC – No portion of this article may be reproduced, retransmitted, posted on a website or used in any manner without the written consent of the Current Consulting Group, LLC. When permission is granted to reproduce this article in any way full attribution to the author and copyright holder are required.

Leave a comment

Your email address will not be published. Required fields are marked *