Zeroing In on Zero Tolerance

A recent court ruling on Connecticut's medical marijuana law may affect employers around the country, experts say, including those operating in the growing number of states that also provide affirmative employment protections for users.

Thursday, August 31, 2017
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The unsettled legal issue of how employers with zero-tolerance policies can handle workers with medical-marijuana prescriptions took another twist in early August, when a federal district judge ruled that various federal laws prohibiting the use and sale of the drug do not preempt Connecticut's Palliative Use of Marijuana Act.

The act, signed into law in 2012, protects employees and job applicants from employment discrimination based on medical marijuana use permitted under state law.

In Noffsinger v. SSC Niantic Operating Company LLC, d/b/a Bride Brook Nursing & Rehabilitation Center, plaintiff Katelin Noffsinger said that doctors recommended she use medical marijuana after a post-traumatic stress disorder diagnosis. Noffsinger registered with the Connecticut Department of Consumer Protection and began using Marinol, a synthetic form of marijuana.

The nursing and rehab center recruited Noffsinger in 2016, making a job offer dependent on passing a pre-employment drug test. She notified the employer that she was a registered medical marijuana user, but only at night before bed so she would not be impaired at work. Noffsinger then took the pre-employment drug test.

The day before she was scheduled to start working, the drug-testing company reported she had tested positive for cannabis, and the center immediately rescinded Noffsinger's job offer. 

Noffsinger sued the center, believing it had violated PUMA's anti-discrimination provision, and the employer tried to dismiss the case by saying the PUMA claim was preempted by three federal statutes: the Controlled Substances Act, the Americans with Disabilities Act, and the Food, Drug and Cosmetic Act. U.S. District Judge Jeffrey Alker Meyer ruled for Noffsinger.

According to Dale Deitchler, a shareholder with Littler Mendelson in Minneapolis, the Noffsinger decision sends a clear message to HR and employers that federal law does not prohibit employment of illegal drug users. The decision is also the first to imply a private cause of action under PUMA's employment anti-discrimination provisions, he adds.

"Noffsinger is significant," Deitchler says, adding that, while the decision specifically concerns Connecticut's PUMA law, its conclusion may have far-reaching consequences that can substantially change the playing field for employers, including ones that operate in the growing number of states that also provide affirmative employment protections for medical marijuana users. 

"Until Noffsinger, employers could generally and reasonably argue that the federal CSA, which criminalizes marijuana, preempts state medical marijuana laws," he says. this ruling, he says, as long as a company's zero-tolerance policy was applied uniformly, it could take the position that it was not taking action against an employee due to the employee's status as a medical marijuana user, but was simply enforcing a policy applicable to all employees with respect to drugs that are illegal under federal law. 

"Noffsinger arguably invalidates that approach under Connecticut law," he says, "and courts in other jurisdictions with similar medical marijuana statutes might follow this lead."

In a similar case, Barbuto v. Advantage Sales & Marketing, the Massachusetts Supreme Judicial Court determined that an employer has obligations to accommodate lawful medical marijuana users under Massachusetts disability discrimination laws. With that, employers in any state where there's a disability discrimination law will need to re-assess risk tolerance, Deitchler says.

For employers that have workers within a safety-sensitive industry, or where there's a special relationship or mandated due care toward customers, Deitchler says they probably should elevate the safety and due-care concerns to some extent above the potential risk for a legal claim.

"If you've got workers who are drivers," he says, "you're probably going to want to take a very thoughtful look at the extent of your legal obligations, because you certainly don't want someone who is impaired causing catastrophic loss after you let the employment law take away the threat of the potential exposure on a personal injury claim."

According to Eric Janson, a partner in the Washington office of Seyfarth Shaw, Connecticut is one of eight states that have recently passed laws prohibiting employers from taking adverse employment action against individuals who are lawfully prescribed medical marijuana under state law. 

Janson says most of these states have only prohibited employers from engaging in "status-based" discrimination -- i.e. refusing to hire or terminating an individual based on their status as a lawful cardholder under a state's medical marijuana program.

"Noffsinger appears to run contrary to a number of other state and federal courts which have either implicitly or explicitly held that similar anti-discrimination laws were preempted by CSA," Janson says, adding that this legal precedent provided legal certainty for employers seeking to prohibit applicants or employees from engaging in any type of medical marijuana use on-duty or off-duty -- even if it's lawful under state law.

Janson says that, while the Noffsinger case will likely be appealed to the Second Circuit -- particularly given what many may view as a "tortured" interpretation of the CSA/ADA -- the decision should remain of particular significance to Connecticut employers that have zero-tolerance policies on drug use either at work or while off-duty. 

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"Until this decision is overturned, employers in Connecticut should consider taking a case-by-case approach for individuals who self-identify or test positive for lawfully prescribed medical marijuana," he says. Employers now need to determine whether individuals can use medical marijuana off-duty without having a negative impact on their job performance or job responsibilities -- similar to how many employers currently treat off-duty alcohol use or the use of certain other prescribed medications.

Laura Jacobsen, an attorney with McDonald Carano in Reno, Nev., has been helping employers write their workplace marijuana policies in a state that recently legalized the drug.

"We're wrestling with the Nevada statute," she says, "which says employers have a duty to reasonably accommodate the medical needs of an employee who engages in the use of medical marijuana under state law."

In that way, Nevada's law is similar to eastern states' statutes, with their anti-discrimination or reasonable accommodation language. And that makes it unlike California, Colorado and Washington, which don't have those specific provisions in their laws.

"Courts in those states have said, 'Yes, you can fire someone for testing positive for marijuana, even if they're engaged in medical use,' " she says. "So that's kind of how we were approaching it in Nevada. But then these cases started popping up and you look at the statutes, and our statute is actually more like the eastern states' [laws]."

Whatever state you're operating in, Jacobsen says, court decisions on workplace and medical marijuana use are all slightly different, based upon the language in each state's law.

Her advice to HR and employers? Read up on the state laws where your company does business.

"If your state law has any sort of duty to accommodate or anti-discrimination provision on medical marijuana use," she says, "then a zero-tolerance policy probably isn't going to fly."

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