What do you do with employees who use “legal” marijuana in violation of your Drug-Free Workplace Policy? So far, 30 states and the District of Columbia have enacted laws permitting use of marijuana for medical purposes, and eight states and the District of Columbia have legalized recreational use. Several other states are currently considering similar legislation. As marijuana use becomes increasingly permissible under state law, but remains illegal under federal law, many employers are left wondering how to enforce their existing drug-testing or drug-free workplace policies. Can you apply your no tolerance drug policy to a medical marijuana user? Not according to one federal court in Connecticut.
Connecticut’s law prohibits employers from terminating or refusing to hire a person “solely on the basis” of that person’s “status as a qualifying patient” who uses medical marijuana. In Noffsinger v. SSC Niantic Operating Company, LLC, the court held that SSC violated the Connecticut law when it rescinded a job offer to Katelin Noffsinger after she failed a pre-employment drug test due to her use of medical marijuana.
Ms. Noffsinger accepted SSC’s job offer, but the offer was contingent on her passing a drug test. Before she took the drug test, Ms. Noffsinger disclosed that she suffered from PTSD, and that she was a registered participant in Connecticut’s medical marijuana program to treat it. She informed SSC that she used medical marijuana in the evenings, not during working hours. She even showed SSC a copy of her registration certificate required by the law and an empty pill container that showed the name and dosage information of her marijuana pills. Unsurprisingly, her drug screen was positive for marijuana, and SSC rescinded her job offer. Ms. Noffsinger sued for violation of the Connecticut law, and SSC removed the case to federal court.
SSC asserted that the positive drug test disqualified Ms. Noffsinger for the job because SSC, a federal contractor, adopted a drug testing policy that followed the federal law and “medical marijuana is not an approved prescription” under the drug-testing program. In its defense, SSC emphasized that, as a federal contractor, it was required to follow the federal Drug Free Workplace Act, and that the federal act preempted the Connecticut state law.
The court rejected this argument, noting that the federal law requires federal contractors to make a “good faith effort” to maintain a drug-free workplace, but does not require a zero-tolerance drug-testing policy such as SSC’s policy. Instead, the court held that the federal law is focused on preventing use of drugs in the workplace, not use of any drugs outside of the workplace, much less the use of medical marijuana.
SSC also argued that the Connecticut law only protects against discrimination based on a person’s “status” as a medical marijuana user, not their actual “use” of the drug. Given that SSC did not rescind Ms. Noffsinger’s job offer when she disclosed her “status” as a participant in the medical marijuana program (only after she failed their standard pre-employment drug test), SSC argued that it did not base the decision on her status. The court said this argument “made no sense,” and would frustrate the purpose of the state law’s anti-discrimination provision — to protect people who use medical marijuana from adverse action by their employers.
For employers, this case is a reminder to be aware of any local or state laws regarding medical or recreational marijuana use that may apply to your employees. If you aren’t sure whether your state has legalized marijuana in some form, do some research. Although not every court is going to agree with this Connecticut decision, don’t assume that relying on federal law, or continuing to enforce the drug-testing policy you’ve always used, will avoid liability.