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Friday, August 25, 2017

Employer Federal Marijuana Defense Up In Smoke


Katelin Noffsinger was made a verbal offer for a position as Director of Recreational Therapy at Bride Brook, a nursing facility in Niantic, Connecticut. When she was then asked to undergo a routine pre-employment drug screen, Noffsinger disclosed that she was diagnosed with PTSD and that she took prescription marijuana as a “qualifying patient” under Connecticut Palliative Use of Marijuana Act (PUMA). Noffsinger provided Bride Brook a copy of her patient registration certificate, explaining that she only took Marinol in the evenings, before bed, and thus would not be impaired during the workday. The day before Noffsinger was scheduled to begin work, Bride Brook rescinded her job offer because she tested positive for marijuana.

Noffsinger filed a complaint in Connecticut state court, alleging a violation of PUMA’s anti-discrimination provision which states, “no employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient.” After removing the case to federal court on the basis of diversity jurisdiction, Bride Brook moved to dismiss Noffsinger’s complaint. The court denied the motion finding no federal preemption by the federal Controlled Substances Act (CSA), Americans with Disabilities Act (ADA) or the Food, Drug and Cosmetic Act (FDCA). 

Bride Brook had argued that an actual conflict exists between PUMA, which affirmatively authorizes the medical use, possession, sale and distribution of marijuana, and the CSA, which classifies marijuana as a Schedule I substance with no known medicinal purpose and thus makes it a federal crime to use, possess, or distribute marijuana. The court rejected this argument as “overbroad,” holding that, because Noffsinger’s claim is limited to PUMA’s anti-discrimination provision Bride Brook must prove a conflict between that specific provision and the CSA, not between the CSA and PUMA more generally. The court held that no such conflict exists because the CSA does not prohibit employers from hiring or employing individuals who use illegal drugs. It distinguished this case from multiple cases in other states that held CSA preempted the state’s medical marijuana law, as none of those state statutes had specific anti-discrimination provisions. Even more disturbing the court held that there is no broad exemption for federal contractors or other federally regulated employers.

Common Sense Counsel: This case complicates an already complicated landscape for employers who conduct drug testing for marijuana, particularly as the decision marks the third time in four months that a court has ruled against employers in drug testing cases involving medical marijuana users. The others were Massachusetts and Rhode Island state courts.  This is the first time a federal court has considered whether the CSA preempts a state medical marijuana law’s anti-discrimination provision, and the result is a warning to employers with policies that include categorical bans on marijuana use. There are at least eight states that have similar medical marijuana employment anti-discrimination penalty prohibition laws, so fix your drug free workplace policy so it will not go up in smoke.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com