By Brandi O. Brown, J.D.
An employee who sued his former employer, alleging that it violated Delaware’s Medical Marijuana Act (DMMA) by firing him for a positive drug test, will proceed with most of his claims after a ruling by a Delaware superior court. The court held that the federal Controlled Substances Act (CSA) did not preempt the anti-discrimination provision of the DMMA. Moreover, it determined that a private right of action was implied by the state law. However, the plaintiff’s claims under the ADA were not timely filed and the defendant’s motion to dismiss was granted in part (Chance v. Kraft Heinz Foods Co., December 17, 2018, Primos, N.).
Medical marijuana for back problems. In his seven years of employment with Kraft Heinz, the plaintiff was promoted from warehouse employee to Yard Equipment Operator. During that time, he also suffered from a variety of medical ailments, including back problems, that led to him obtaining a medical marijuana card in 2016. He also took several periods of FMLA leave and used short-term disability benefits.
Failed drug test, fired. In August 2016, the employee raised concerns about the conditions of the railroad ties in the railroad yard. He submitted an incident report and on the following day met with a maintenance supervisor and two others to show them the defects. He reported that he believed the conditions violated the United Facilities Criteria, but was told the employer was not obligated to comply with those standards. Later the same day he was operating a wagon on the tracks that derailed. He was asked to undergo a drug test, which was inconclusive. He was asked to submit to another test two days later, on which he tested positive for marijuana. He informed the Medical Review Officer that he possessed a medical marijuana card, which he provided, but nevertheless he was fired later that month for failing the drug test.
The employee filed a charge of discrimination and later filed suit. His amended complaint (filed after he obtained counsel) included claims under the DMMA, the ADA and its state counterpart, the Delaware Whistleblowers’ Protection Act, and common law. The employer filed a motion to dismiss.
DMMA not preempted. Raising an issue of first impression in Delaware, the employer argued that the DMMA was in conflict with the federal CSA and, thus, was preempted. The court did not agree. Finding opinions out of Connecticut and Rhode Island persuasive (and the cases cited by the employer distinguishable), the Delaware court explained that it would require an overbroad interpretation of the federal law to conclude that it preempted the state law. The state law does not require employers to participate in an activity made illegal under the CSA. Instead, it merely prohibits employers from discriminating against an employee based on his or her medical marijuana use. The CSA does not make it illegal to employ someone who uses marijuana. In fact, it does not even “purport to regulate employment matters within this context.” Rather, the federal law explicitly confirmed that Congress did not intend for the federal law to preempt a state law “unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.” The anti-discrimination provisions of the state law did not pose an obstacle to Congress’s objectives, nor did they render compliance with both laws impossible. Thus, conflict preemption did not apply.
Implied private right of action. Raising another issue of first impression, the employer also argued that there was no private right of action to enforce the anti-discrimination provision of the DMMA. Again, the court disagreed. “A private right of action may be implied” the court explained “if there is ‘strong evidence that the legislature intended to create it.’” That evidence exists, the court explained. Applying the test articulated by the U.S. Supreme Court in Cort v. Ash, the court concluded that the factors weighed in the employee’s favor. Section 4905A prohibits employers from discriminating against employees (and would-be employees) based on their status as a cardholder or, in the case of a registered qualifying patient, his or her positive drug test. The employee fell within the class of persons for whose benefit the statute was enacted—he was a medical marijuana cardholder who was fired after failing a drug test. Moreover, a private right of action would advance the purpose of the statute.
And while there was no explicit statutory directive indicating the state legislature’s intent to grant or deny a private right of action, the employer’s arguments against an implied right were unpersuasive. In fact, the arguments the employer made had been “scrutinized and dismissed” in a very similar case from Rhode Island, Callaghan v. Darlington Fabrics Corp. The purpose of the section is to prohibit employment discrimination, the court explained. Because no agency or commission had been tasked with its enforcement and no remedy other than a private right of action was available under its provisions, the court found that the language of the section created an implied private right of action.
Mixed results on remaining claims. The court also refused to dismiss the employee’s whistleblower claims at this stage of the proceedings, although it noted that the employee could still face loss of the claims if discovery failed to uncover support for his allegation that the condition of the rail ties constituted a violation of law. Likewise, his claims for common law wrongful discharge survived. However, the court agreed with the employer that the employee’s claims under the ADA and Delaware’s Persons with Disabilities Employment Protections Act should be dismissed because they were not included, or otherwise alluded to, in the initial, timely-filed complaint.
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