In an issue of first impression, a federal district court in Connecticut found an implied private right of action under Connecticut’s Palliative Use of Marijuana Act (PUMA) and further held that federal law did not preempt the PUMA discrimination claim of a registered medical marijuana user whose job offer was rescinded after she tested positive, even though she explained to the employer that she only took synthetic cannabis at bedtime and was not under the influence at work. In finding no preemption, the court explained the federal Controlled Substances Act (CSA) does not regulate the employment relationship and that the ADA does not regulate non-workplace activity (Noffsinger v. SSC Niantic Operating Co, LLC, August 8, 2017, Meyer, J.).
The plaintiff was prescribed medical marijuana to treat post-traumatic stress disorder (PTSD). She registered with the state as qualifying for protection under PUMA, Conn. Gen. Stat. § 21a-408 et seq., and began taking one capsule of Marinol, a synthetic form of cannabis, each night as prescribed. At the time, she worked as a recreation therapist at a long-term care facility. In June 2016, the plaintiff was recruited by another nursing facility, Bride Brook, to be its director of recreational therapy. During an interview with the nursing home’s administrator, the plaintiff was offered the position, which she accepted. The administrator set up a meeting for July 25 to have the plaintiff complete paperwork and a pre-employment drug screen. The administrator also instructed the plaintiff to give notice with her current employer, which she did.
Job offer rescinded after drug screen. At the July 25 meeting, the plaintiff disclosed her use of prescription marijuana and she showed the administrator her certificate. She explained she took Marinol before bed each night but was never impaired at work. The administrator continued to process her employment and gave her documents to complete at home before orientation on August 3. However, her job offer was rescinded on August 2 due to a positive urine test for cannabis. Because her prior job had been filled, she could not stay there either. She filed suit against the prospective employer alleging discrimination in violation of PUMA, as well as claims for wrongful job rescission in violation of public policy and negligent infliction of emotional distress.
PUMA not preempted by federal law. Refusing to dismiss the PUMA claim, the court rejected the employer’s argument that the Act is preempted by three different federal statutes: the CSA, the ADA, and the Food, Drug, and Cosmetic Act (FDCA). The employer relied on a theory of obstacle preemption, in which a state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” To make this showing, noted the court, it requires an “actual conflict” with the federal objective, and that was lacking here.
CSA, FDCA don’t regulate employment. First, PUMA does not conflict with, or stand as an obstacle to, the CSA because the federal law does not regulate the employment relationship but instead has the main objective of conquering drug abuse and controlling drug traffic. The CSA makes it a federal crime to use, possess, or distribute marijuana and makes no exception for medical use, but the CSA does not make it illegal to employ a marijuana user or regulate any employment practice. The same analysis applied to the FDCA which, like the CSA, does not purport to regulate employment and did not preempt PUMA.
The court distinguished the cases from other states on which the employer relied because they have no provision barring employment discrimination. This case was more similar to a recent Rhode Island ruling, in which that state court held that the CSA did not prohibit the anti-discrimination-in-employment provision under Rhode Island’s medical marijuana statute. Like that statute, Connecticut’s law regulates the employment relationship, an area in which states “possess broad authority” and which is not addressed by the CSA, explained the court.
ADA doesn’t regulate non-workplace activity. With respect to the ADA, the employer argued that it was crafted to make clear that the ADA does not protect those who use illicit drugs. In point of fact, the ADA states that employers “may prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees.” To the court, though, the key point is that the ADA applies to the use of drugs “at the workplace” and this case did not involve the plaintiff’s use of marijuana at work. Indeed, PUMA also explicitly declines to authorize such workplace use.
Furthermore, the fact that the ADA does not state that employers can prohibit illicit drug use outside of the workplace is a “powerful indication that the ADA was not to meant to regulate non-workplace activity, much less to preclude the States from doing so.” And the fact that the ADA allows an employer to use drug testing without ADA liability did not mean the ADA precludes states from preventing discrimination against someone who fails any kind of drug test.
The court noted that its conclusion that PUMA is not preempted was reinforced by the ADA’s “savings clause,” which states the Act shall not be “construed to invalidate or limit the remedies, rights, and procedures of any Federal law or law of any State . . . that provides greater or equal protection for the rights of individuals with disabilities than are afforded by this chapter.”
Private right of action under PUMA. In denying the employer’s motion to dismiss the PUMA discrimination claim, the court also addressed a question of first impression and held that the Act implies a private right of action under the Connecticut Supreme Court’s three-factor test in Napoletano v. CIGNA Healthcare of Conn., Inc. The test asks: whether the plaintiff is in the class for whose benefit the statute was enacted; whether there is an indication of legislative intent to create or deny a private action; and whether the recognition of a private right of action would be inconsistent with the legislature purpose of the Act. Here, the plaintiff was in the protected class; testimony from public hearings suggested legislators expected PUMA would provide protections for employees that would be enforceable in the courts; and the private cause of action would not be inconsistent with the purpose of the legislative scheme.
No Equal Protection Clause violation. Also rejected was the employer’s argument that PUMA violates the Equal Protection Clause by requiring employers to treat one class of employees (medical marijuana users) better than others (recreational users). The court explained that the legislature could rationally distinguish between favoring people who use marijuana for medicinal purposes under the careful guidance of a physician from those who use it on a whim to get high.
Common law claims. The court also refused to dismiss the employee’s negligent infliction of emotional distress claim, finding that the rescission of the job offer here was akin to discharge and could support the claim. On the other hand, the court dismissed the employee’s claim that the rescission of the job offer violated Connecticut public policy because PUMA contains a private right of action that already vindicates the policy.
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