Weed At Work: What Accommodations Must Connecticut Employers Make For Medical Marijuana Users?

By: Carolyn A. Young, Esq.

In 2012, Connecticut passed the Palliative Use of Marijuana Act (PUMA)(Conn. Gen. Stat. §21a-408 et seq), which permits “qualifying patients” to use marijuana for the treatment of certain medical conditions. Connecticut’s medical marijuana law is part of a larger trend nationally to decriminalize and regulate the use of marijuana for both medical and recreational purposes, which in turn has created uncertainty for employers in regard to existing company policies and best employment practices.

In one of the first legal challenges to PUMA, the United States District Court in Connecticut held that PUMA was not pre-empted by federal law, and that a Connecticut employer could be held liable under state law for refusing to hire a “qualifying patient” who tested positive for marijuana on a pre-employment drug screen. Noffsinger v. SCC Niantic Operating Co., 273 F.Supp.3d 326 (D.Conn. 2017). 

This article provides an overview of PUMA and the rights of employers in addressing medical marijuana use by current or prospective employees.

While the recreational use of marijuana is still prohibited in Connecticut, under PUMA, Connecticut has enacted a medical marijuana law. Residents who are least 18 years of age and have been diagnosed by a Connecticut-licensed physician with a “debilitating medical condition,” defined as cancer, glaucoma, HIV, AIDS, Parkinson’s disease, multiple sclerosis, damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity, cachexia, wasting syndrome, Crohn’s disease, or post-traumatic stress disorder, may obtain a physician’s written certification for the palliative use of marijuana, and then register as “qualifying patients” with the Department of Consumer Protection. 

PUMA allows “qualifying patients” to engage in the palliative use of marijuana without criminal sanctions and without being penalized in any manner, including, being subject to any disciplinary action by a professional licensing board. Connecticut’s law, unlike some other states, also explicitly protects “qualifying patients” from adverse employment action. An employer may not refuse to hire a person or discharge, penalize, or threaten an employee solely on the basis of such person’s or such employee’s status as a qualifying patient. Employees claiming employment discrimination related to medical marijuana use are able to file a complaint with the Connecticut Commission on Human Rights and Opportunities (“CHRO”).

 But the statute also explicitly protects an employer’s ability to prohibit the use of intoxicating substances during work hours, as well as the employer’s ability to discipline an employee who is under the influence of intoxicating substances during work hours. Also, the law does not allow the ingestion of marijuana in a moving vehicle, in the workplace, on any school grounds, in any public place, or in the presence of a person under the age of eighteen and prohibits the palliative use of marijuana when it endangers the health or wellbeing of another person.

Additionally, under PUMA, employers may refuse to hire or discharge a “qualifying patient” if required by federal law or funding requirements. Marijuana use (including the palliative use of the drug) remains illegal under federal law. Thus, employees who are required to hold a Commercial Drivers’ License and are subject to federal drug testing regulations are not protected under PUMA. Additionally, employers who hold federal contracts or receive federal funding may refuse to hire or discharge employees if required by the federal contract or funding terms and if there is no other available work for the employee. 

As noted above, the recent decision from the U.S. District Court applied a narrow interpretation of the federal law or federal funding exception to the PUMA anti-discrimination provision. In Noffsinger v. SCC Niantic Operating Co., 273 F.Supp.3d 326 (D.Conn. 2017), after accepting a job offer from the defendant, the plaintiff disclosed that she uses medical marijuana to treat PTSD at night only, indicating that she would never be impaired during the work day. The employer continued to process the Plaintiff’s pre-employment paperwork and submitted her urine sample to a third-party lab for drug screening, as it does with all new hires. The day before the Plaintiff was scheduled to begin her orientation, the employer rescinded her job offer because she had tested positive for marijuana on the drug screen. 

The plaintiff sued pursuant to PUMA’s employment discrimination provision, and the federal court determined that the defendant was not exempt from the PUMA anti-discrimination provision based on the federal Drug Free Workplace Act (“DFWA”), which requires federal contractors to make a good faith effort to maintain a drug-free workplace. The court held that the DFWA does not require drug testing and does not prohibit federal contractors from employing someone who used illegal drugs outside of the workplace or used medical marijuana outside the workplace in accordance with a program approved by state law.

Similarly, the federal court rejected preemption arguments based upon the Controlled Substances Act, the Americans with Disabilities Act (“ADA”), and the Food, Drug, and Cosmetic Act. The court held that the Controlled Substance Act and the Food and Drug and Cosmetic Act do not purport to regulate employment and that the ADA only authorizes an employer to prohibit the use of illegal drugs and alcohol in the workplace. The federal court noted that the act of merely hiring a medical marijuana user does not itself constitute a violation of the CSA or any other federal, state, or local law, and therefore, the employer could be held liable for refusing to hire a qualifying patient who tested positive for marijuana on a pre-employment drug screen.

Thus, unless an employee is a “covered employee” under federal drug testing regulations or working under a federal contract, or the employer receives federal funds tied to federal drug testing requirements, a Connecticut employer faces potential liability in discharging or refusing to hire a “qualifying patient” on the basis of a positive drug test if there is no indication that the employee was or would be intoxicated at the workplace. 

It is important to note that PUMA has not yet been challenged with respect to safety sensitive occupations.

If you have any questions about how PUMA may affect your company and your employment policies, please contact Carolyn Young (cyoung@mkrb.com) at Michelson, Kane, Royster & Barger, P.C. for more information.

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