Two years ago, when the Pennsylvania Medical Marijuana Act (MMA) passed, we advised employers that the Act contained an express anti-discrimination provision providing that:

No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against any employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.  MMA §2103(b)(1).

Since that time, however, there has been little guidance to employers regarding the breadth or impact of this anti-discrimination provision.  This month, that changed.

On September 5^th, a Federal District Court in Connecticut ruled on the impact of such an anti-discrimination provision in the hiring context.  Noffsinger v. SSC Niantic Operating Co., LLC. Because the Connecticut Palliative Use of Marijuana Act (PUMA) includes the same anti-discrimination as the PA Act, the Noffsinger decision provides guidance to Pennsylvania employers.

In Noffsinger, the employer, a health and rehabilitation facility, offered plaintiff the position of Activities Manager subject to completion of various pre-employment screenings, including a drug screen.  At that point, plaintiff advised the hiring manager that she was qualified under PUMA to use medical marijuana to treat PTSD.  Plaintiff showed the manager an empty pill container specifying the dosage information for her medical marijuana pills and stated she took the pills each evening to prevent night terrors.  Employer sent plaintiff for the drug screen, which returned positive for THC.  The hiring manager discussed the situation with HR and advised that plaintiff was disqualified from the job because “medical marijuana is not an approved prescription” and “we use federal law, which indicates marijuana is still illegal.”  Employer subsequently rescinded plaintiff’s job offer.

The plaintiff filed suit alleging, among other things, that the employer discriminated against her in violation of PUMA’s anti-discrimination provision.  The relevant portion of PUMA provides “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.”  Discovery revealed that “plaintiff’s job offer was rescinded because of her positive drug test result and that this positive drug test result stemmed from plaintiff’s use of medical marijuana pursuant to her qualifying status under PUMA.”  Accordingly, the District Court granted summary judgment in plaintiff’s favor, unequivocally stating that the employer’s refusal to hire her violated PUMA’s anti-discrimination provision and that the statute contained an implied private right of action.  Notably, the District Court rejected the employer’s arguments that federal law pre-empted PUMA and that the federal Drug Free Workplace Act barred it from hiring plaintiff.

They key take-aways from the Noffsinger case are as follows:

• The anti-discrimination provision contained in Connecticut’s PUMA provides an implied right of action;
• A zero-tolerance pre-employment drug testing policy violates the anti-discrimination provision in the Connecticut law;
• The Drug Free Workplace Act will not save a zero-tolerance policy, because the DFWA only requires federal contractors to “make a good faith effort to maintain a drug-free workplace.” The DFWA does not require drug testing and does not prohibit federal contractors from employing someone who uses medical marijuana outside the workplace in accordance with a program approved by state law.
• The anti-discrimination provision contained in PUMA mirrors the anti-discrimination provision contained in the PA Medical Marijuana Act.

Based on the Noffsinger decision and the similarities between the PUMA and the PA MMA, PA employers should take caution.  Refusing to hire an applicant, who is a certified to use medical marijuana under PA law, simply because he/she has failed or will fail a drug screen likely violates the anti-discrimination provision of the PA MMA.  Instead, we recommend that employers engage in an interactive process with the employee to determine if his/her use of medical marijuana, outside of work, can be accommodated (i.e. whether the employee’s use of medical marijuana will affect the employee’s ability to perform work in a safe and productive manner).  We also recommend including exception language in your pre-employment drug testing policy.