Delaware: Federal Law Does Not Preempt Employee Protections under Delaware’s Medical Marijuana Law

In Chance v. Kraft Heinz Foods Company, a Delaware Superior Court judge recently stated that the federal Controlled Substances Act (CSA) does not preempt employee protections under the state’s medical marijuana law (DMMA). Specifically, it relied on Connecticut and Rhode Island cases that distinguish the CSA as merely making marijuana usage illegal, but not prohibiting the employment of marijuana users.

Here, an employee underwent a post-accident drug screen, where he tested positive for the presence of marijuana. Although the employee notified the Company he possessed a medical marijuana card to treat ongoing back issues, his employer terminated him for the failed drug screen. The employee subsequently filed suit alleging wrongful termination under the DMMA’s anti-discrimination provision.

The DMMA specifically prohibits disciplining employees who test positive for medical marijuana unless the person “used, possessed, or was impaired by marijuana” on the job or during work hours. Moreover, the court stated that a private right of action was implied in the DMMA, so that employees would have an outlet for seeking recourse should they experience discrimination.

Delaware joins a growing list of states permitting discrimination claims to proceed under their own state medical marijuana laws. Employers are well advised to review their substance abuse policies and seek legal counsel familiar with their state’s marijuana laws prior to taking employment action against employees in similar scenarios.