As I wrote last month, the courts around the country are increasingly addressing cases on how to apply various state medical marijuana laws in the employment context, and such cases are likely a foreshadowing of what we can expect in Pennsylvania.
A case out of Connecticut this past week, which has a state statute that is in substance identical to Pennsylvania’s Medical Marijuana Act on the issue of employment, provides further clarity to employers and the protections employees who use medical marijuana may have under Pennsylvania law.
In the case of Noffsinger v. SSC Niantic Operating Co., LLC, No 3:16-CV-01983 (D. Conn., Aug. 8, 2017), a potential employee was found to have sufficiently alleged a cause of action under Connecticut state law when she was denied a job at a nursing home due to her use of medical marijuana outside of work.
In Noffsinger, the plaintiff applied for a job, was offered the job, and told to provide notice to her current employer, which she did. The plaintiff was prescribed medical marijuana for post-traumatic stress disorder, which she took once a day in the evening before bed and not at work. Shortly before starting her new job, the plaintiff was advised that she would need to come in to complete some paperwork and take a drug test and, at that meeting, advised the employer that she took medical marijuana outside of work and even offered to provide additional documentation about the same. Plaintiff was notified that she failed the drug test, as she tested positive for cannabis, and her job offer was rescinded. Plaintiff filed suit alleging that the rescinding of her employment offer was in violation of Connecticut’s Palliative Use of Marijuana Act, which is substantially similar to Pennsylvania’s Medical Marijuana Act.
The Court found that based upon the facts alleged, the plaintiff stated a viable cause of action under Connecticut law.
First, the Court dismissed the claims by the employer that the Connecticut Law, which would allow the use of medical marijuana, is preempted by federal law, which prohibits the use of all forms of marijuana. The Court’s rationale is that the federal Controlled Substances Act does not make it illegal to employ someone who uses marijuana or otherwise regulate the employer-employee relationship and, as a result the state law is not trumped by the federal law in this regard.
Second, the Court found that while there is no specific provision in the Connecticut Law that provides for a private cause of action (the right of an employee to sue her employer directly), one is implied, and notes the trend of permitting such causes of actions under similar state laws.
Third, the Court dismissed as bordering on the absurd, the argument made by the employer that because it, as a nursing home, is subject to federal regulations, it was permitted to not hire the employee due to her illegal drug use, finding that there is nothing in federal law or regulations that would make it unlawful for one to employ a medical marijuana user who uses this drug outside of work. The Court concluded that the employee could proceed with her claim that the revocation of the employment offer was in violation of state law.
The Noffsinger case makes some very important points for employers in Pennsylvania, given, as noted above, that the provisions of the law in questions are substantially similar to Pennsylvania law.
First, the mere fact that the use of marijuana is illegal under federal law does not exempt employers from the non-discrimination provisions in the Pennsylvania Medical Marijuana Act.
Second, it appears likely that such laws will be interpreted to include a private cause of action (the ability by an employee who is subject to adverse employment actions to bring suit based upon violation of the non-discrimination provisions.)
Finally, the Court has implied that it will view the exceptions to the statute so as to excuse non-compliance if compliance would put the employer in violation of federal law narrowly and the court puts burden on the employer to establish the same (although it is unclear if other courts in other states will follow suit).
As a result, employers should be very careful in how they proceed when addressing this issue and, certainly until the law becomes more settled, consult with counsel when looking at taking adverse employment action against medical marijuana users.
The Eastern Pennsylvania Employment Log (EPELog) is a publication of the KingSpry Employment Law Practice Group. Jeffrey T. Tucker, Esquire, is our editor-in-chief. EPELog is meant to be informational and does not constitute legal advice.
