In The First Case Of Its Kind, Court Rules Federal Law Does Not Trump Employee Protections Under State Medical Marijuana Law

Employers nationwide take note: if your workplace drug and alcohol-testing policies take a zero tolerance approach to medical marijuana because the use, distribution, or possession of marijuana is unlawful under federal law, a recent federal court decision interpreting state law could be a game-changer. On August 8, 2017, in Noffsinger v. SSC Niantic Operating Company LLC, d/b/a Bride Brook Nursing & Rehabilitation Center, a Connecticut federal district court held that various federal laws prohibiting use and sale of marijuana do not preempt Connecticut's Palliative Use of Marijuana Act (PUMA), which protects employees and job applicants from employment discrimination based on medical marijuana use permitted under state law. The core implication of the Noffsinger decision is that federal law does not prohibit employment of illegal drug users. The decision is also the first to imply a private cause of action under PUMA's employment anti-discrimination provisions.

Plaintiff's PTSD, Failed Drug Test, and PUMA Claim

The plaintiff claimed she was diagnosed with post-traumatic stress disorder (PTSD) and that as a result, her doctors recommended she use medical marijuana. She registered with the Connecticut Department of Consumer Protection, and following registration, began using Marinol, a synthetic form of marijuana.

The defendant recruited the plaintiff in 2016, extending an employment offer contingent on plaintiff's passing a pre-employment drug test. The plaintiff notified the employer that she was a registered medical marijuana user who took Marinol, but only at night before bed so she would not be impaired at work. The plaintiff then took the pre-employment drug test.

The day before the plaintiff was scheduled to start work, the drug-testing company informed the parties that the plaintiff had tested positive for cannabis. That same day, the defendant rescinded the plaintiff's job offer because of the failed drug test.

The plaintiff sued, alleging the defendant violated PUMA's anti-discrimination provision. The defendant moved to dismiss, primarily asserting plaintiff's PUMA claim was preempted by three federal statutes: the Controlled Substances Act (CSA), the Americans with Disabilities Act (ADA), and the Food, Drug, and Cosmetic Act (FDCA).

Court Rules Federal Law Does Not Prohibit Employing Illegal Drug Users and Implies Private Cause of Action under PUMA

The Noffsinger court found no federal preemption of PUMA. The court first analyzed...