In August of 2017, the U.S. District Court for the District of Connecticut made news when it ruled that federal law does not preempt a state law that expressly prohibits employers from firing or refusing to hire someone who uses medical marijuana.  Now court has entered summary judgment in the same case in favor of the plaintiff, finding that a federal contractor discriminated against a job applicant in violation of Connecticut’s Palliative Use of Marijuana Act ("PUMA") by refusing to hire a medical marijuana user.

In Noffsinger v. SSC Niantic Operating Co., Katelin Noffsinger alleged that Bride Brook Nursing and Rehabilitation Center, a federal contractor, reneged on its decision to hire her because she acknowledged using medical marijuana and tested positive for cannabis in a pre-employment drug test.  Noffsinger filed a complaint against Bride Brook alleging, among other things, a violation of PUMA’s anti-discrimination provision. The language of PUMA 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..."  The court denied Bride Brook's motion to dismiss. (We discussed the court's decision on the motion to dismiss here.)    

In opposition to Plaintiff’s summary judgment motion, Bride Brook argued that it was exempt from PUMA’s anti-discrimination provision because the statute allows for an exception if discrimination "is required by federal law or required to obtain federal funding."  Bride Brook contended that the federal Drug Free Workplace Act ("DFWA") barred it from hiring Noffsinger.  The court rejected Bride Brook’s argument, stating that the DFWA does not require drug testing, "nor does the DFWA prohibit federal contractors from employing someone who uses illegal drugs outside of the workplace, much less an employee who uses medical marijuana outside the workplace in accordance with a program approved by state law."  The court emphasized that just because Bride Brook chose to utilize a zero tolerance drug testing policy to maintain a drug free work environment does not mean that this policy was "required by federal law or required to obtain federal funding." The court also rejected Bride Brook’s argument that the federal False Claims Act barred it from hiring Noffsinger.  

Bride Brook also argued that PUMA only prohibits discrimination on the basis of one’s status as an approved medical marijuana patient, but not on account of one's use of medical marijuana.  The court squarely rejected this argument because the purpose of the statute is to protect employees from discrimination based on their use of medical marijuana pursuant to their qualifying status under PUMA.  If the court were to adopt Bride Brook’s reading of the statute, employers would be free to fire status-qualifying patients based on their actual use of medical marijuana.  The court stated "that makes no sense and would render the statute's protection against PUMA-based discrimination a nullity."

Employers should continue to monitor the expanding legalization of medical marijuana across the country and review their drug testing policies and procedures with counsel for compliance with state statutes. Understanding the language of the state medical statutes is key for employers when dealing with the issue of medical marijuana.  We discuss three questions employers should consider regarding medical marijuana here.  Further, this case provides an important discussion of the interplay between the DFWA and state statutes authorizing medical marijuana.  

The case is Noffsinger v. SSC Niantic Operating Co. No. 3:16-cv-01938 (JAM).