A recent court ruling has added to the small but growing pile of jurisprudence at the intersection of marijuana legalization and labor law. In a decision handed down on September 5, a federal court in Connecticut found that Bride Brook, a federal contractor, had run afoul of that state’s Connecticut Palliative Use of Marijuana Act (PUMA) by rescinding a job offer to Katelin Noffsinger, a medical marijuana user, after she tested positive on a pre-employment drug test. The court granted summary judgment to Noffsinger but declined to award her attorney fees or punitive damages, Jackson Lewis attorney Kathryn J. Russo explains:
Bride Brook argued that its refusal to hire Noffsinger is allowed by an exception to PUMA’s anti-discrimination provision (when “required by federal law or required to obtain federal funding”). It argued that the federal Drug-Free Workplace Act (DFWA) barred it from hiring Noffsinger because that law prohibits federal contractors from allowing employees to use illegal drugs. Marijuana is illegal under federal law. The court rejected Bride Brook’s argument, noting that the DFWA does not require drug testing and does not regulate employees who use illegal drugs outside of work while off-duty. …
Bride Brook also argued that it did not violate PUMA because it did not discriminate against Noffsinger based on her status as a medical marijuana user; rather, it had relied on the positive drug test result. The court dismissed this argument, concluding that acceptance would render a medical marijuana user’s protection under the statute a nullity.
While possession and sale of the drug remain illegal under federal law, as more states relax their prohibitions on either medical or recreational marijuana, this has created legal conundrums for employers, who must rethink their zero-tolerance drug policies lest they end up in the same situation as Bride Brook.
Some of these state laws explicitly state that employers do not have to accommodate the use or possession of marijuana in the workplace, but also prohibit them from taking adverse action against employees on the basis of their legal marijuana use while off the clock. Others, like Maine’s law passed by referendum in 2016, leave these employment issues unclear, and it remains to be seen how the details shake out in court. The Massachusetts Supreme Court last year became the first court in the US to rule in favor of a medical marijuana patient who claimed unfair dismissal after being fired from their job for failing a drug test.
Marijuana is a more difficult drug for employers to monitor and regulate than alcohol, because the drug tests currently available only show whether a person has used it in the past month or so, not whether they are currently impaired. Employers must rely on other indicators of intoxication, which may be more difficult to prove in court. The use of marijuana for medicinal purposes may further compound these complexities.
A survey earlier this year found that 67 percent of US employers now have policies addressing medical marijuana use and that 22 percent consider medical marijuana among their most significant compliance challenges. Accordingly, business groups have been pressing the Trump administration to issue guidelines on how to reconcile conflicting federal and state laws regarding marijuana in terms of their impact on employment issues. Attorney General Jeff Sessions is an outspoken critic of the drive to decriminalize and legalize marijuana and has sought to step up federal law enforcement even in states that have pursued these changes, but Congress is moving in the opposite direction, most recently pushing forward a bill that would require the Justice Department to begin issuing more licenses to grow marijuana for research.
This post is published for informational purposes only and does not constitute legal advice or an opinion on the legal matters discussed within. Employers should consult their general counsel whenever they have questions pertaining to laws, regulations, or potential liabilities.