All Employers with CT Employees
August 8, 2017
Contact HR On-Call
In Noffsinger v. SSC Niantic Operating Company LLC, a Connecticut federal district court stated that federal law concerning unlawful marijuana use does not necessarily preempt state-level protections for marijuana users. In this case, Connecticut’s Palliative Use of Marijuana Act (“PUMA”) was found to preempt a handful of federal statutes when applied to the employment context. This decision could have a major impact on employers who currently implement a zero-tolerance substance abuse policy in the workplace.
In Noffsinger, the employer extended an offer of employment to the plaintiff conditioned on successful clearance of a pre-employment drug test. The plaintiff used a synthetic type of medical marijuana to treat PTSD and notified Niantic of such. When she tested positive for cannabis, Niantic withdrew the offer of employment, and the plaintiff sued, alleging that the employer violated PUMA’s anti-discrimination provision.
Although the company argued that PUMA was preempted by federal statutes (the Controlled Substances Act, Americans with Disabilities Act, and the Food, Drug, and Cosmetic Act), the court disagreed. Upon analyzing each of these federal statutes, the court stated:
- The Controlled Substances Act (“CSA”) makes marijuana usage itself illegal, but does not prohibit the employment of marijuana users. While PUMA and CSA appear to be in conflict as to the legality of marijuana use, the court stated that CSA does not regulate employment practices. Further, the CSA did not prevent the plaintiff from making her PUMA claim, which was based on the employer taking adverse employment action against her PUMA-authorized use of medical marijuana.
- The primary intention of the Americans with Disabilities Act (“ADA”) is to protect disabled employees from discrimination. The ADA allows employers to prohibit illegal drug use at the workplace, but does not permit adverse employment action based on drug use outside of the workplace. The court also rejected the idea that employers can use a negative-drug test result as a standard qualification for employment.
- The Food, Drug, and Cosmetic Act (“FDCA”) allows the U.S. Food and Drug Administration (“FDA”) to designate the safety of food, drugs, and cosmetics. Although marijuana is not an FDA-approved drug, the court found that the FDCA does not regulate employment practices and does not preempt PUMA’s anti-discrimination provision.
Following this analysis, the court stated that there is an implied private right of action under PUMA’s anti-discrimination prohibition. This case could lead to more employee claims of discrimination based on medical marijuana use.
The legal landscape around marijuana usage is constantly shifting, so employers need to stay on their toes. For starters, the plaintiff in Noffsinger used Marinol, a synthetic type of marijuana that is actually legally permitted under the CSA. This was not addressed by the court or by the parties involved, so the applicability of the Noffsinger decision may change in the future when applied to a drug that is actually prohibited by federal law. Notwithstanding, Noffsinger, conflicts with other cases that came to the opposite conclusion; for example, in Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, the Oregon Supreme Court explicitly stated that the CSA preempts the Oregon Medical Marijuana Act. Employers should be cautious when enforcing a substance abuse and drug testing policy.
- Have substance abuse and drug testing policies reviewed for compliance.
- Revise drug testing procedures to eliminate the potential for prohibited discrimination.
- Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.
© 2017 ManagEase, Incorporated.