MEDICAL MARIJUANA PROTECTION

Last week, a federal judge in Connecticut found in favor of a woman whose job offer was withdrawn after she tested positive for medical marijuana.

Katelin Noffsinger had post-traumatic stress disorder after an accident, and was using medical marijuana to treat it. She was offered a position as an Activities Manager with a health and rehabilitation center. The center had a “zero-tolerance” policy on drug use.

The Connecticut Palliative User of Marijuana Act allows persons to use medical marijuana for certain specified reasons and prohibits employers from discriminating “solely because of the person’s status as a qualifying medical marijuana patient under state law.”

Ms. Noffsinger disclosed during the hiring process that she was a qualified medical marijuana user, and she subsequently tested positive for THC, the active ingredient in marijuana. The rehabilitation center withdrew its job offer, and Ms. Noffsinger filed suit. Roughly a year ago, the court had refused to dismiss the lawsuit based on the employer’s argument that the Connecticut PUMA was preempted by federal law.

Last week, the court granted summary judgment to Ms. Noffsinger on her PUMA claim. As the court noted, “The facts are undisputed here that plaintiff’s job offer was rescinded because of her positive drug test result and that this positive drug test result stemmed from plaintiff’s use of medical marijuana pursuant to her qualifying status under PUMA.”

 

In its summary judgment decision, the court rejected the employer’s argument that it had to withdraw the offer to be in compliance with the federal Drug-Free Workplace Act. As the court noted, the DFWA does not require employers to withdraw job offers from individuals who test positive for drugs, nor does it even require drug testing. The court also rejected the employer’s argument that the federal False Claims Act required it to refuse to hire someone who tested positive for marijuana.

The court also found that there was no difference between discriminating against an employee because of his or her “status” as a medical marijuana user and discriminating against an employee because of his or her “use” of medical marijuana. Making that distinction, the court said, “makes no sense and would render the statute’s protection against PUMA-based discrimination a nullity, because there would be no reason for a patient to seek PUMA status if not to use medical marijuana as permitted under PUMA.”

Although the plaintiff had filed a charge with the Connecticut Human Rights Office alleging that the offer was withdrawn because of her PTSD, the court found that she was not estopped (prevented) from pursuing her PUMA claim because she was using medical marijuana to treat the PTSD.

The court did, however, grant the employer’s motion for summary judgment on attorneys’ fees and punitive damages, as well as the plaintiff’s claim for negligent infliction of emotional distress.

A number of jurisdictions prohibit discrimination against employees who are medical marijuana cardholders. However, under federal law, marijuana use for any purpose is still illegal. Thus, there is no obligation under the Americans with Disabilities Act to accommodate users of medical marijuana. (ADA principles related to non-discrimination, the interactive process, and reasonable accommodation are still helpful to follow if you’re in a jurisdiction that has anti-discrimination protections.)

Common Sense Counsel: There are no guarantees, but these six tips should help you stay in compliance, even if you are in a jurisdiction that prohibits discrimination against medical marijuana cardholders:

1. Make sure that your job descriptions clearly indicate when a position is “safety-sensitive.” Include the ability to work in a safe and alert manner as essential functions of the job.
2. Make sure that your drug-free workplace policies comply with applicable state and local laws.
3. Require employees to disclose when they are taking any medication (even a legal one) that might impair their ability to perform the job safely or competently. But when such disclosures are made, be sure to engage in the interactive process and consider reasonable accommodations that will allow the employees to continue working. If you believe you need to take adverse action against an employee because the employee is on legal medication of any kind, consult with your employment counsel first.
4. If you have not already done so, train your Human Resources department and supervisors and managers about the ADA, applicable state or local disability discrimination laws, and the reasonable accommodation obligation. Make sure that they understand that these obligations might apply in the context of an applicant or employee who possesses a valid medical marijuana card.
5. Make sure that your Medical Review Officer or occupational physician understands the principles of disability discrimination, the interactive process, and the reasonable accommodation obligation. Once you are satisfied that this is the case, request a fitness-for-duty assessment before you consider taking adverse action against an employee who has a valid medical marijuana card.
6. Consult with your employment counsel throughout all of these steps.