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Weeding Out a Job Candidate, Literally: Connecticut Court Weighs in on Medical Marijuana Laws and Drug TestsWhat 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.

The Facts

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 In Noffsinger v. SSC Niantic Operating Company, LLC, the court held that SSC violated the Connecticut law when it rescinded a job offer to Katelin Noffsinger after she failed a pre-employment drug test due to her use of medical marijuana.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 Unsurprisingly, her drug screen was positive for marijuana, and SSC rescinded her job offer.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.

Takeaways

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.

Happy Thanksgiving and the Many Things for Which We Are ThankfulBefore everyone gets out of the office to their various homes and families to celebrate the holiday, we wanted to review the year and count our blessings. Not only are we thankful that our families and colleagues in our Houston and Tampa offices weathered the storms safely, we are also thankful for the following legal stuff:

1. The DOL is not about to change the wage and hour laws.

Does anyone else remember the panicked calls last Thanksgiving week when the Texas judge put the brakes on a regulation that was going to increase the salary basis test? We are all thankful that will not happen this year. Although we still don’t know what, if anything, will happen on that front we will keep you posted.

2. Finally a court has said the ADA is not about leave.

Despite the EEOC’s insistence otherwise, the Seventh Circuit stepped up to the plate and said extended leave is not a reasonable accommodation under the ADA. As we all know, you still need to consider if a limited amount of leave will get the employee back to work but we are thankful that we have some new case law on this front.

3. Harvey Weinstein doesn’t work for us.

This story has horrified many but given all employers a wake-up call. We are grateful for the opportunity to train more people and try to make America a better place to work.

4. The NLRB has a new direction.

Maybe the new Board won’t tell employees that it is okay to swear at your boss on Facebook or nitpick employer policies quite so much.

5. You’re not going to be the employer of someone else’s employees.

DOL has withdrawn its prior guidance on independent contractor and joint employer liability, and Alabama’s Rep. Byrne has introduced a bill to “Save Our Small Businesses.”

6. Legalized marijuana has made questions about drug policies so much more interesting.

Even though it isn’t legal in many states, the fact that employees can legally ingest marijuana many places (including Florida) and take their chances on the looming random drug screen has spiced up our lives. While the law will continue to develop in this area, we are grateful for the very interesting questions we have received.

7. People other than our mothers read this blog.

(Okay, some of our moms are reading and might boost the numbers a little bit.) Since 2016, we have published more than 130 articles and had more than 230,000 reads, according to aggregate reports from Lexology and JD Supra. We have received recognition in The Expert Institute’s Best Legal Blog 2017 competition, the ABA Journal’s Web 100 Ranking, and numerous quotations in other publications. We enjoy bringing you this information and love it when you tell us it is helpful or tweet it to someone else.

Happy Thanksgiving from the Labor & Employment Insights blog team!

“But My Doctor Said It Was Cool”: Florida’s New Medical Marijuana Bill and Employment ConsiderationsLast month, Florida Gov. Rick Scott signed into law a medical marijuana use bill. This was the result of the overwhelming vote (71 percent) in favor of amending the Florida Constitution to allow medical marijuana use as prescribed by a licensed Florida physician. Florida now joins 27 other states that have legalized at least some form of marijuana use.

Details of Florida’s Law

To qualify for medical marijuana use in Florida, a patient must have a “debilitating medical condition.” The law specifies the following as qualifying conditions:

cancer, epilepsy, glaucoma, HIV/AIDS, PTSD, ALS, Crohn’s disease, Parkinson’s disease, multiple sclerosis and other debilitating medical conditions of the same kind or class or comparable to those enumerated.

Obviously, what constitutes “other debilitating medical conditions” leaves the door wide open for other medical conditions to come within the coverage of legal medical marijuana use. Some states, such as California and Washington, have defined “debilitating medical conditions” to include severe pain, cramping, anxiety, vomiting, and appetite loss. It is doubtful Florida would take such an expansive definition, but time will tell.

Interestingly, the final version of the law still bans the smoking of marijuana. Florida joins the states of Louisiana, Minnesota, New York and Pennsylvania, all which have legalized marijuana use in some form but still ban its smoking. Rather, in Florida, legal marijuana must be consumed in oil or edible form. How long this remains the law is in doubt since one of the major supporters of the law has already filed suit contesting the constitutionality of the no smoking ban.

It is worth noting that federal law, not state law, governs what constitutes an illegal drug. Under the Federal Controlled Substance Act, marijuana is still a Schedule I hallucinogen and its use is still illegal despite the legalization of its use in many states. Several state court decisions have relied on this principle in deciding to limit employee rights under the various state laws legalizing marijuana use.

Considerations for Florida Employers

So, what does a Florida employer do with an employee who is using medical marijuana?

Americans with Disabilities Act (ADA) Issues. Probably the most difficult challenge will be the interplay between the ADA and the legal use of marijuana. As you know, under the ADA an employer must make reasonable accommodations to a qualified individual with a disability—but illegal drug use is not considered a covered disability. I can envision the scenario where an employee presents a physician’s note supporting an accommodation of the employee being allowed to take marijuana during working hours to control a debilitating condition. But for the fact that marijuana is illegal under federal law, the ADA would seem to require that accommodation. The Florida law does not go that far.

Unlike some state laws (e.g., New York, Arizona, Minnesota, Illinois), the Florida law does not require an employer to accommodate on-site medical use of marijuana. To put it another way, Florida employers have no legal duty under this new law to allow employees to consume medical marijuana at the workplace. The law does not address off-site accommodation of medical marijuana use. However, considering the conservative nature of Florida employment laws, there is little concern that Florida employers need to accommodate medical marijuana use outside of the workplace either.

Drug Testing Policies. How will this affect a Florida employer’s drug testing policies? Unlike many states, the Florida Drug-Free Workplace Act (the Act) incentivizes employers to establish a drug-free workplace policy. The Act gives a Florida employer a credit on its workers’ compensation premiums if it has a qualified drug-free workplace policy. Even without such a policy, a Florida private employer still has the right to drug test its employees at any time. It remains to be seen if a Florida employer has the lawful right to terminate an employee who tests positive for legal (at least under state law) medical marijuana use. Once again, considering the conservative jurisprudence of the Florida courts, it would not surprise me that an employer still retains the right to fire that employee. In other states courts have upheld the employer’s right to do so considering marijuana use is still illegal under federal law. However, I am not unmindful of the argument that 71 percent of Florida voters voted in favor of medical marijuana use and such a firing would seem to be against the will of the electorate.

Takeaways

Even with the passage of this new bill, in the short term, I do not see it as having any major impact on Florida employers. Florida employers still do not need to accommodate medical marijuana use at work and can continue to fire employees who test positive for using it. Having said that, employers should remain vigilant in keeping abreast of the changing employment laws. While it seems unlikely under the current administration that federal laws will become more employee-friendly (i.e., legalizing marijuana use), Florida courts or the Eleventh Circuit may do just that. Issues could also arise under the FMLA, union contracts, whistle-blowing on a “drug user” and elsewhere.

Moral of this blog: Stay tuned.