Te court concluded that the employer refused to hire the applicant because of her status as a medical marijuana user. Te court also found that under the Rhode Island Civil Rights Act (“RICR”), the applicant had adequately alleged that she is “disabled” under the terms of the RICR.9 To obtain a medical marijuana card, this individual needed to establish that she had a disabling condition. She was, therefore, entitled to protection under the RICR.


July 17, 2017: Massachusetts: Barbuto v. Advantage Sales and Marketing, LLC On July 17, 2017, the Massachusets Supreme Judicial Court ruled that an applicant who had been offered a position that was subsequently withdrawn aſter she tested positive for marijuana as a result of her lawful medical use could pursue a remedy against her employer based on the state’s handicap discrimination law.10


Te


applicant was told by a human resources representative that the company “follows federal law” when it comes to drug testing. Te applicant, who suffers from Crohn’s


disease, filed a six-count complaint. Tree of the counts dealt with handicap discrimination and two dealt with the state medical marijuana law.11 Te Massachusets Superior Court


dismissed all counts except for one— the invasion of privacy count. Te Massachusets Supreme Judicial Court allowed the applicant’s application for a direct appeal to that court. Te court primarily focused on the applicant’s handicap allegations.12


marijuana—a crime under federal law. Te employer argued that any accommodation would be facially unreasonable. Te court disagreed. Equating the lawful


use of marijuana for medical purposes to the use of any other “prescribed” medication, the court said:


If the employer . . . had a drug policy prohibiting the use of such medication, even where lawfully prescribed by a physician, the employer would have a duty to engage in an interactive process with the employee to determine whether there were equally effective medical alternatives to the prescribed medication whose use would not be in violation of its policy . . . Where no equally effective alternative exists, the employer bears the burden of proving that the employee’s use of the medication would cause an undue hardship to the employer’s business in order to justify the employer’s refusal to make an exception to the drug policy reasonably to accommodate the medical needs of the handicapped employee.13


Te court remanded the case to the


superior court and noted that the employer will have an opportunity to provide evidence that the applicant’s continued


use of marijuana couldn’t be reasonably accommodated because it would pose an undue hardship, such as impairing performance or posing an unacceptable safety risk. Tat case continues.


August 8, 2017: Connecticut: Noffsinger v. SSC Operating Company LLC, d/b/a Bride Brook Nursing and Rehabilitation Center On August 8, 2017, a United States District Court judge in Connecticut ruled that the federal Controlled Substances Act (CSA),14


which still holds that marijuana


is a Schedule I substance with no medical purpose, does NOT preempt Connecticut’s medical marijuana law.15 Te plaintiff was recruited for a


position at a nursing facility that required a pre-employment drug screen. She accepted an offer extended by the facility’s administrator. Te plaintiff met with the facility administrator and disclosed that she was taking “Marinol” (a prescribable, synthetic form of marijuana—Schedule III). She submited to a drug test that was reported as positive.16 Te offer was rescinded. Te plaintiff filed a three-count complaint. Te count


It found


that, because Crohn’s disease is characterized as a “debilitating medical condition” under the medical marijuana law, and the applicant had Crohn’s disease, she adequately alleged in her complaint that she was a handicapped person. Te employer argued that the applicant could not qualify as a handicapped person since the only accommodation she requested was to continue using


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