In the first substantive court decision involving Connecticut’s Palliative Use of Marijuana Act (PUMA), a federal judge has ruled that an employer cannot refuse to hire a medical marijuana user simply because he or she fails a drug test. The employer’s arguments to the effect that federal law prohibiting pot preempted PUMA, and that state law only protected one’s status as a medical marijuana user, not actual use of pot, were rejected.
The lawsuit was filed when an employer withdrew a job offer after an applicant failed a drug test, even though she had previously provided documentation of medical marijuana use for post-traumatic stress disorder. The employer argued that PUMA did not provide for a private right to sue, but earlier this year the judge rejected that claim, pointing out that, if there were no private right of action, the statute would have no effect. (Ironically, at about the same time, a state court judge dismissed a similar lawsuit by an applicant for state employment based on the doctrine of sovereign immunity.)
PUMA provides that no employer can take negative action against an applicant or employee based solely on his or her palliative use of marijuana. An employer may, however, prohibit the use of intoxicating substances during work hours, or discipline an employee for being under the influence of drugs during work hours.
Obviously, these provisions may sometimes seem to be in conflict, since the whole purpose of medical marijuana is to provide some relief from physical pain or psychological stress. If it has that effect on a person while at work, isn’t he or she “under the influence”? The answer depends on the facts involved, especially whether the employee is impaired in a way that adversely affects job performance, or is in a safety-sensitive position, or is in a position where federal standards apply.
Our advice to employers is to avoid making employment decisions based solely on a positive drug test result. PUMA requires a more sophisticated analysis that may result in a judgment call based on the potential risks of a decision either way. A knowledgeable employment lawyer should be able to assist in that process.
Fall 2018
Employment Law Letter