relevant to this discussion alleged a violation of the “anti-discrimination” section of the state’s medical marijuana law.17
Tat section states:
b) Unless required by federal law or required to obtain federal funding: . . . (3) No employer may refuse to hire a person or may discharge, penalize, or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient or primary caregiver under sections 21a- 408 to 21a-408n, inclusive. Nothing in this subdivision shall restrict an employer’s ability to prohibit the use of intoxicating substances during work hours or restrict an employer’s ability to discipline an employee for being under the influence of intoxicating substances during work hours.18
Te court, recognizing that no other
court had interpreted the Connecticut medical marijuana law, disagreed with the employer’s suggestion that this section of the law (and only this section) was an obstacle to the enforcement of the CSA. Te court said, the “CSA . . . does not make it illegal to employ a marijuana user. Nor does it purport to regulate employment practices in any manner.” Te employer had relied on the Oregon Supreme Court’s determination19
that its
medical marijuana statute was preempted by the CSA, but the Connecticut court noted that the language of the Oregon law differed dramatically from that of Connecticut. Te Oregon law did not contain an anti-discrimination provision like the one at issue here.20
Conclusion (or Beginning): Compliance with state medical marijuana laws is critical. But these cases show that there is more to consider; you must also recognize that where the state medical marijuana law does not provide a “private right of action”—the right to sue—lawyers
30 datia focus 4
who represent those who were fired or not hired are going to look elsewhere for theories upon which to base their case. State disability discrimination laws look to be their answer. Tis is not good news for employers. Every state has human rights laws. Most state anti-discrimination laws are very complex, requiring employers to engage in an interactive process to determine if the employer can reasonably accommodate the employee or demonstrate an undue hardship, or more. If you are not in Connecticut,
Massachusets, or Rhode Island, and are feeling prety good right now—don’t get too smug. Te language of your state’s laws may be similar, and your courts may yet interpret them the same way these courts have. Just be prepared. ❚
All statutes, regulations, and court decisions discussed are available through Encompass Compliance Corp. at
www.emcompinc.com.
References 1
The Federalist, No. 22,
https://www.congress.gov/ resources/display/content/The+Federalist+Papers#TheFed eralistPapers-22
2
California Health & Safety Code 11362.5—Proposition 215 §11362.5, to be cited as the “Compassionate Use Act of 1996.”
3
Employers or their agents have lost cases that can indirectly impact the employer, such as unemployment cases in Michigan (Braska et al, v Dept. of Licensing & Regulatory Affairs, Unemployment Insurance Agency, No. 313932, (Mich App 2014)) and cases requiring workers’ compensation reimbursement of marijuana costs in New Mexico. (Those are not the subject of this discussion. Greg Vialpando v. Ben’s Automotive Services, 2014-NMCA- 084, 331 P.3d 975 cert. denied, 331 P.3d 924. (2014), (holding that the Workers’ Compensation Act authorizes reimbursement for treatment and declining to hold that federal law prohibited it); Maez v. Riley Industrial, 2015- NMCA-049, 347 P.3d 732 (considering sufficiency of evidence that supported medical cannabis as reasonable and necessary treatment for the worker in that case); Sandra Lewis v. American General Media and Gallagher Bassett 2015- NMCA-90, (2016) where the New Mexico Court of Appeals again found that medical cannabis is a reasonable and necessary form of treatment for injured workers and subject to reimbursement.
See the Massachusetts discussion below where the Court found it unnecessary to recognize a “private right of action”—also known as a “cause of action”—under the state medical marijuana law. This essentially means you have a right to sue. If the legislature did not specifically provide for this, the court may determine if there is an “implied cause of action,” as was found in the Rhode Island case discussed below.
5
The authority to “prescribe” comes from the federal DEA. Because marijuana remains a crime under federal law, it cannot be prescribed—only recommended.
6
There is a significant difference between medical use and personal use in terms of the arguments or theories that can be raised. With medical use, there is an underlying medical condition protected by state discrimination laws. That fact does not exist for those using recreationally.
7
All cases are available at the Encompass Compliance Resource Center.
8
Callaghan v. Darlington Fabrics Corporation, et al., C.A. No. PC 2014-5680 (Providence County Superior Court), May 23, 2017). Copies available from Encompass Compliance Corp. Resource Center.
9
The court sidestepped the employer’s argument that Callaghan could not be disabled since she was using an “illegal” drug. The court indicated that marijuana is not illegal under Rhode Island’s medical marijuana law and left it at that without explaining much further.
10
Barbuto v. Advantage Sales and Marketing, LLC, 477 Mass. 456 (2017).
11 12 The sixth claim dealt with invasion of privacy.
The court concluded that there was no “statutory private cause of action” under the medical marijuana act.
13
The Court noted that any accommodation under the medical marijuana act would not include any on-site use of marijuana.
14 15 21 U.S.C. §801 et seq. (“CSA”).
Noffsinger v. SSC Niantic Operating Company LLC, d/b/a/ Bride Brook Nursing & Rehabilitation Center, No. 3:16-cv-01938 (JAM), (8/08/17). The Court noted that this is the first known case to interpret Connecticut’s medical marijuana statute.
16
The Court’s opinion does not mention whether there was a medical review officer.
17
Palliative Use of Marijuana Act (PUMA), Conn. Gen. Stat. §21a-408 et seq.
18
Conn. Gen. Stat. §21a-408p(b)(3).
https://www.cga.
ct.gov/2015/pub/chap_420f.htm
19
Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 230 P.3d 518 (Or. 2010).
20
The Court noted that the Plaintiff in the Oregon case filed suit under Oregon’s disability discrimination law.
Bill Judge is an attorney who, for the past 30 years, has concentrated his practice on research, consultation, litigation assistance, and management training related
to the legal issues of substance abuse in the workplace and in our nation’s schools. Bill is the Chief Research Officer and Co-founder of Encompass Compliance Corp, which is a cloud-based risk management service that provides customers with a vast resource center of state-specific drug & alcohol testing compliance information, policies, procedures, and training which can be utilized for effective program management.
spring 2018
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