Working Together

Since Connecticut passed the Palliative Use of Marijuana Act (“PUMA”), employers have struggled with how to apply its anti-discrimination provisions in various workplace situations. This is especially confusing given that the use of marijuana, even for medicinal purposes, is still considered illegal under federal law.  This month, the U.S. District Court for Connecticut, in Noffsinger v. SSC Niantic Operating Co., weighed in on whether an employer, which is a federal contractor, discriminated against an applicant when it withdrew its job offer after the applicant, who was an approved medical marijuana user under state law, tested positive for marijuana on a pre-employment drug test.

In 2013, Connecticut passed PUMA, which allows individuals to use medical marijuana for certain medical conditions. Important to employers, it also contains an anti-discrimination provision that prohibits an employer from refusing to hire a person or from discharging, penalizing or threatening an employee solely on the basis of the person’s status as a qualifying medical marijuana patient under Connecticut law.  C.G.S. §21a-408p(b)(3).  Federal law, however, continues to classify the possession and/or use of marijuana as a felony involving a Schedule I drug under the Controlled Substances Act, 21 U.S.C. §812.

The facts in the Noffsinger case were not disputed.  The plaintiff was an approved medical marijuana user.  The employer, which is a federal contractor, required all prospective employees to undergo pre-employment drug testing.  After she was conditionally offered a position, the plaintiff informed the company that she was an approved medical marijuana user.  As expected, her drug test came back positive for TCH consistent with the use of marijuana.  At that point, the employer revoked its offer of employment due to the positive drug test.  The Court, however, granted summary judgment (i.e., judgment without trial) to the plaintiff, finding that the employer violated PUMA’s anti-discrimination provisions when it rescinded the job offer based on the positive drug test.

The Court rejected both principal arguments advanced by the employer. First, the employer argued that the federal Drug Free Workplace Act (“DFWA”) barred the company from hiring the plaintiff because of her marijuana use.  The DFWA requires federal contractors to make good faith efforts to maintain a drug free workplace.  The Court rejected this argument, however, finding that the DFWA did not require an employer to conduct drug testing, nor did it prohibit federal contractors from employing individuals who used drugs outside of the workplace.  The Court thus rejected the employer’s argument that it would violate federal law to hire the plaintiff because of her marijuana use outside of the workplace.

The employer next argued that PUMA prohibits discrimination on the basis of one’s status as an approved medical marijuana user, but not because of an individual’s actual use of the drug. Thus, the employer argued that it should be allowed to rescind the job offer because of the positive drug test despite the plaintiff’s status as a qualified medical marijuana user.  The Court also rejected this argument, finding that PUMA protected not only the employee’s status as a medical marijuana user, but also protected the actual use of the marijuana.

There were no claims that the applicant used marijuana at work and/or that she was under the influence of marijuana while at work. PUMA contains a provision stating that “[n]othing in this subdivision shall restrict an employer’s ability to prohibit the use of intoxicating substances during work hours or restrict an employer’s ability to discipline an employee for being under the influence of intoxicating substances during work hours.”  Thus, employers still have the right to prohibit employees from using marijuana at work, and to prohibit them from being under the influence of marijuana while at work.  Employers, however, must be careful, when making employment decisions based on pre-employment and/or other drug testing, to comply with the anti-discrimination provisions of PUMA.