COMPLIANCE CORNER BY WILLIAM J. JUDGE AND NICK HARTMAN,
DRUG SCREENING COMPLIANCE INSTITUTE (DSCI)
Employers Take Notice: Marijuana Is Driving State Disabilities Issues
Marijuana in the workplace and prescription drug use is, unfortunately, an ever-changing, complicated landscape of regulations.
M
ore than half of the states in our country have introduced and implemented laws authorizing
the use of marijuana for medical purposes. A “growing” handful of states have also authorized the personal (“recreational”) use of marijuana. Tese state laws are in direct conflict with the federal Controlled Substances Act (CSA)(21 USC §812), which still holds that the possession of marijuana is a crime. Tese relatively new state laws have been
largely uninterpreted by either state or federal courts, but the few cases that have been decided in recent years have been, for the most part, state-level court decisions. Interestingly, a recent federal district court case has added some nuanced elements to the critical question of how these marijuana laws can coexist with the CSA that still classifies marijuana as a “drug with no currently accepted medical use and a high potential for abuse.” Tese cases have been discussed before
in DATIA focus, at DATIA seminars, and in DATIA webinars. But we want to emphasize an aspect of these cases that we believe indicates where medical marijuana and the prescription-drug-abuse crisis are driving this corner of employment law— state disability discrimination laws.
Noffsinger v. SSC Niantic Operating Company LLC, d/b/a Bride Brook Nursing & Rehabilitation Center (2018)
Last year, the Federal District Court in Connecticut ruled that the federal Controlled Substances Act1
did not preempt
Connecticut’s Palliative Use of Marijuana Act (PUMA).2
the only federal court to do so. Now, that same Court has ruled that the employer
44 datia focus Tis was the first and to date
violated the anti-discrimination provisions of PUMA when it withdrew its offer of employment due to the applicant’s status as a medical marijuana patient.3 Te facts of the case are undisputed.
Katelin Noffsinger was recruited for the position of Activities Manager at Bride Brook Facility, run by Defendant SSC Niantic Operating Company, LLC (the Company). She was offered and accepted that position, contingent upon the completion of pre-employment screening, including a drug test. She disclosed to the facility administrator that she used marijuana at home at night for PTSD symptoms stemming from a car accident. She took the required pre-employment drug test and was reported positive for marijuana (THC). Aſter some internal discussions, Noffsinger was informed that her job offer was being rescinded due to her positive pre-employment drug test. Noffsinger sued, alleging, among other
things, that the Company violated PUMA’s anti-discrimination provisions. PUMA’s anti-discrimination provision provides in relevant part:
[U]nless required by federal law or required to obtain 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 [the law]. 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.4
[emphasis added] winter 2019
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