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More Buzz in Connecticut on Medical Marijuana in the Workplace

A Connecticut federal court judge provided further clarification for employers concerning Connecticut’s Palliative Use of Marijuana Act (PUMA). In its second decision in Noffsinger v. SSC Niantic Operating Company, LLC (Noffsinger II), the court further defined the contours of a PUMA discrimination claim, holding that federal law does not negate PUMA’s anti-discrimination protections and that certain damages are not recoverable under PUMA. This case is significant for employers because it explains the relationship between federal and Connecticut state laws concerning marijuana use and provides important guidance for employers that use drug testing in the workplace.

Background

Noffsinger II involved a Connecticut nursing home that rescinded a job offer to a prospective employee, Katelin Noffsinger, after she tested positive for marijuana in a routine preemployment drug screening. Prior to the test, Noffsinger provided the nursing home with her registration demonstrating that she was a qualified user under PUMA, and she informed the nursing home that her physician had legally prescribed marijuana to treat her post-traumatic stress disorder. Nevertheless, when the test came back positive for tetrahydrocannabinol, a chemical in marijuana, the nursing home rescinded the job offer based on its zero-tolerance anti-drug policy and the fact that marijuana is still illegal under federal law.

Noffsinger then sued the nursing home, alleging that it violated the nondiscrimination protections of PUMA, which allows qualifying patients to use marijuana and prohibits employers from taking adverse employment actions because of an individual’s qualifying status, by rescinding her offer based on her protected status as a “qualifying patient.”  

In the first decision in this case (Noffsinger I), the court considered and rejected the nursing home’s argument that federal law, which categorically prohibits the use of marijuana for any purpose, preempted the anti-discrimination provision of PUMA. The court concluded that there is no conflict between federal and Connecticut marijuana regulation, and thus no preemption.  Noffsinger I also held that a private right of action exists under PUMA for firing or refusing to hire a qualified user of medical marijuana.

Court Rules in Favor of Prospective Employee’s Discrimination Claim

On September 5, 2018, the same district court judge that decided Noffsinger I granted summary judgment in Noffsinger’s favor in connection with her PUMA claim. The court concluded that the nursing home violated PUMA by rescinding the job offer based on a positive preemployment drug test notwithstanding the fact that Noffsinger was a “qualifying patient” under Connecticut law.

In so doing, the court rejected the nursing home’s argument that its zero-tolerance policy complied with the Drug Free Workplace Act (DFWA), which requires federal contractors to make a “good faith effort” to maintain a drug-free workplace. The court concluded that the DFWA does not prohibit federal contractors from employing someone who uses medical marijuana outside of the workplace.

Similarly, the court rejected the nursing home’s argument that hiring someone who uses medical marijuana in violation of federal law would amount to defrauding the federal government under the False Claims Act. The court stated that there is no federal law barring the nursing home from hiring a prospective employee who uses medicinal marijuana outside of work hours.

The nursing home also advanced an argument that PUMA only prohibits discrimination based on one’s “status” as a “qualified patient,” but not on account of one’s “use.” The court rejected this argument, reasoning that “there would be no reason for a patient to seek PUMA status if not to use medical marijuana as permitted under PUMA.”

Importantly, Noffsinger II emphasized that PUMA does nothing to limit an employer’s ability to prohibit the use of intoxicating substances during work hours. It only protects a “qualifying patient” from an adverse employment action for using marijuana “outside of work hours and in the absence of any influence during work hours.”

Attorneys’ Fees and Punitive Damages Not Recoverable Under PUMA

Noffsinger II further clarified that attorneys’ fees and punitive damages are not available under PUMA. In advancing her claims, Noffsinger sought both kinds of damages, and the court rejected her contention that such damages were recoverable under PUMA, finding that the legislative text does not provide for either type of award.

Key Takeaways

Noffsinger II makes clear that PUMA protects a qualifying patient’s medical marijuana use outside working hours and in the absence of any influence during working hours. It also clarifies that federal law does not—at least under similar circumstances—supplant the anti-discrimination protections of PUMA. Connecticut employers may want to review their drug testing policies and ensure that the employees responsible for administering drug testing decisions understand that they cannot rely solely on federal law to justify not hiring an employee who tests positive for marijuana. 

Noffsinger II also reemphasizes that this is an evolving area of the law that is not yet settled.  Employers may want to keep a close watch on developments regarding medical marijuana in the workplace—especially related to preemployment drug testing.

© 2018, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

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About this Author

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Kelly M. Cardin is an associate in the Stamford office of Ogletree Deakins. Her practice focuses on representing employers in a wide range of disputes, including those involving discrimination and retaliation claims, wage and hour claims, wrongful discharge claims, and claims under the FMLA. Kelly also represents employers in class action lawsuits, often involving wage and hour issues. Additionally, she maintains a commercial litigation practice, representing companies in breach of contract and trade secret disputes, among others. Kelly has represented clients before the...

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Rio J. Gonzalez, Ogletree, Employment lawyer
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Rio J. Gonzalez is an Associate in the Stamford office of Ogletree Deakins. Rio’s practice focuses on the full range of labor and employment matters including employment discrimination, wage and hour violations, harassment claims, and wrongful discharge, before state and federal courts as well as administrative agencies.  

During law school, Rio worked to secure immigration relief for vulnerable non-citizens through Boston University’s Immigrants’ Rights and Human Trafficking Program. In addition to serving as a student representative on various committees while in law school, Rio served as Co-President of the Latin American Law Student Association and as a Director of the Edward C. Stone Moot Court Competition. Rio was also the recipient of a Best Brief award and a Dean’s Award in Immigration Law. Passionate about diversity and inclusion initiatives as well as supporting the professional development of students of color, Rio remains an active alumni mentor.

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John G. Stretton, Ogletree Deakins, noncompete confidentiality lawyer, wrongful termination attorney
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John Stretton is a Shareholder in the Stamford office of Ogletree Deakins with nearly twenty years of experience. Clients view John as a resourceful counselor and aggressive litigator who never loses sight of a client's business objectives and need to establish value. In addition to providing proactive counseling and advice, John is frequently sought out to represent clients in discrimination, noncompete, confidentiality, wrongful termination, wage and overtime, breach of contract, unfair trade practices, intellectual property and complex litigation matters in state and...

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