February 05, 2018 Top Story

Harold and Kumar Don’t Get Fired: Every Employee May Get Stoned

States may prohibit termination of medical marijuana users despite federal law

By Adam E. Lyons

In a strict reading of the intersection of federal drug law and state law allowing use of medical marijuana, a federal court enforced the state law prohibiting employment discrimination against medical marijuana users. The decision found a cause of action for employment discrimination exists when an employer terminates an employee for state-sanctioned medical marijuana use.

Employers cannot discriminate against medical marijuana users

Employers cannot discriminate against medical marijuana users

Pexels | Michael Fischer

Language the court relied upon exists in at least nine states’ laws. The conclusion lies on the “leading edge” of where medical marijuana law is likely going, and section leaders recommend members to take notice, states Aaron Krauss, Philadelphia, PA, former cochair of the ABA Section of Litigation’s Health Law Litigation Committee.

Getting into the Weeds: Factual Background

The defendant nursing home in Noffsinger v. SSC Niantic Operating Company LLC recruited the plaintiff for employment. After receiving an offer, the employee disclosed that she took medical marijuana to treat post-traumatic stress disorder. She also made clear that she only used marijuana at night. The marijuana use did not affect her work performance and she had registered her treatment under Connecticut’s Palliative Use of Marijuana Act (PUMA).

The employer never mentioned these points disqualified the employee. Several days later, the employer withdrew the employment offer based on a positive drug test for marijuana. By that time, the employee had no job to return to. In the lawsuit she filed, the employee alleged wrongful termination in violation of PUMA’s anti-discrimination provision and two other causes of action.

The employer moved to dismiss, arguing “the Controlled Substances Act [(CSA)], Americans with Disabilities Act [(ADA)], and Food, Drug, and Cosmetic Act [(FDCA)] each invalidate PUMA under a theory of obstacle preemption. Under obstacle preemption, a state law is preempted where the state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,’” according to the U.S. District Court for the District of Connecticut opinion.

Establishing obstacle preemption is a “heavy burden,” the court noted, because the requirement is of an “actual conflict” between federal and state law. Analyzed under that burden, each of the statutes on which the defendant relied failed to show this level of conflict.

First, the CSA provides it does not preempt state law absent a direct conflict and there was no direct conflict because the CSA does not address employment discrimination. Second, the ADA addresses illegal drug use at the workplace, which was not the factual pattern here, and the ADA is “not an employer’s Magna Carta to engage in drug testing of all employees.”

Third, the FDCA has no relationship to employment. Finally, the employer’s argument that it could not hire the employee because it is subject to federal regulation “borders on the absurd.” Accordingly, the court denied the employers’ motion to dismiss, setting it apart from prior decisions on medical marijuana law, and allowed the case to proceed.

Hashing Out State and Federal Law

“The most accurate way to examine this decision is to put aside the policy issue of whether medical marijuana is appropriate. Once that is out of the equation, the decision appears to be correct,” advises Krauss.

Other Section leaders agree lawyers should understand the decision as a wide-ranging preemption analysis, not as a policy decision on medical marijuana. In that light, the case is “a roadmap for careful parsing of the intersection of state and federal law,” opines O. Andrew F. Wilson, New York, NY, cochair of the Section of Litigation’s Civil Rights Litigation Committee. Once the focus moves to the “non-discrimination requirement in PUMA, the other statutes become distinguishable,” Wilson concludes.

Smoke Signals: Noffsinger Provides Current Clarity, But Leaves a Hazy Future

In deciding how to deal with medical marijuana, employers subject to PUMA or similar laws can treat medical marijuana the same way they have long treated alcohol use. “[U]nless the medical marijuana is interfering with job performance,” PUMA requires employers to take no action, in Krauss’s opinion.

In short, Section leaders advise not to overreact to this decision. “Connecticut has made the judgment that marijuana has legitimate medical uses. An employer wouldn’t consider firing a person on Oxycontin, if that person is satisfactorily completing his or her work,” counsels Krauss.

Yet, employers who rely on Noffsinger would do well to watch the continuing development of the federal response to medical marijuana, Krauss also advises. Health care providers, at least, cannot employ persons with criminal convictions, for example. If federal law enforcement prosecutes medical marijuana users and achieve convictions, laws other than PUMA would likely require some employers to fire convicted employees, suggests Krauss.

Thus, a change in federal criminal practice could quickly change the outcome for medical marijuana users in employment. The clarity that Noffsinger brings to the question of federal preemption of medical marijuana use in employment could quickly go up in smoke.


Adam E. Lyons is an associate editor with Litigation News.

Hashtags: #civilprocedure, #healthlaw, #employment, #medicalmarijuana, #preemption


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