Employment Law Daily Rescinding job offer after registered medical marijuana user failed drug test violated Connecticut statute
Tuesday, September 11, 2018

Rescinding job offer after registered medical marijuana user failed drug test violated Connecticut statute

By Joy P. Waltemath, J.D.

Connecticut’s Palliative Use of Marijuana Act (PUMA), which contains an antidiscrimination provision that bars an employer from refusing to hire a person or from discharging, penalizing, or threatening an employee solely because of the person’s status as a qualifying medical marijuana patient under state law, convinced a federal district court in Connecticut to grant judgment as a matter of law to an applicant—a registered medical marijuana user under PUMA—whose conditional job offer was rescinded after she tested positive for cannabis, although she had disclosed her use of prescription marijuana to her prospective employer. However, the court denied the applicant either attorneys’ fees or punitive damages, and ruled against her negligent infliction of emotional distress claim (Noffsinger v. SSC Niantic Operating Co. LLC dba Bride Brook Nursing & Rehabilitation Center, September 5, 2018, Meyer, J.).

The applicant had been prescribed medical marijuana to treat post-traumatic stress disorder (PTSD). She registered with the state as qualifying for protection under PUMA, and she took one capsule of a synthetic form of cannabis each night as prescribed. At the time, she worked as a recreation therapist at a long-term care facility but in June 2016, the applicant was recruited by another nursing facility to be its director of recreational therapy. During an interview with the nursing home’s administrator, she was offered the position, which she accepted. The administrator set up a meeting for July 25 to have the applicant complete paperwork and a pre-employment drug screen; the administrator also asked her to give notice with her current employer, which she did.

Job offer rescinded after drug screen. At the July 25 meeting, the applicant disclosed her use of prescription marijuana and she showed the administrator her certificate. She explained she took a pill before bed each night but was never impaired at work. The administrator continued to process her for employment and gave her documents to complete at home before orientation on August 3, but her job offer was rescinded on August 2 due to a positive urine test for cannabis. She could not return to her prior job. She sued her 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.

The court had previously ruled that PUMA creates a private right of action and that PUMA’s antidiscrimination provision is not preempted by federal law. After the parties conducted discovery, they cross-moved for summary judgment, and the court found the applicant entitled to judgment as a matter of law on her claim of employment discrimination under PUMA. But it granted the employer’s motion for summary judgment precluding her recovery for attorneys’ fees and punitive damages for her PUMA claim, and also ruled against the applicant’s claim for negligent infliction of emotional distress.

PUMA liability. It was undisputed that the applicant’s job offer was rescinded because of her positive drug test result and that this positive drug test result stemmed from her use of medical marijuana as a result of her qualifying status under PUMA. The employer tried to avoid liability, first by arguing it is exempt from PUMA’s antidiscrimination provision because the statute has an exception if discrimination is “required by federal law or required to obtain federal funding,” and citing the federal Drug Free Workplace Act (DFWA) as the federal law requirement that barred it from hiring the applicant. The employer adopted its substance abuse policy in order to comply with the DFWA, it contended, suggesting that any actions it took in accordance with that policy were outside the scope of PUMA liability.

Drug Free Workplace Act. But the court did not agree that the DFWA required the employer to rescind the applicant’s job offer. The DFWA does not require drug testing; nor does it prohibit federal contractors from employing someone who uses illegal drugs outside of the workplace, “much less an employee who uses medical marijuana outside the workplace in accordance with a program approved by state law,” reasoned the court. The fact the employer had chosen a zero tolerance drug testing policy to maintain a drug free work environment does not mean that this policy was actually “required by federal law or required to obtain federal funding.”

False Claims Act. Next, the employer argued the federal False Claims Act barred it from hiring the applicant “because its employment of someone who uses medical marijuana in violation of federal law would amount to a defrauding of the federal government.” Because there is no federal law that barred the employer from hiring the applicant due to her medicinal use of marijuana outside work hours, hiring her would not constitute fraud on the federal government.

Status vs. use. The employer also tried out the argument that PUMA prohibits discrimination only on the basis of one’s status as an approved medical marijuana patient but not on account of one’s use of medical marijuana, even in accordance with a PUMA program. It cited statutory language that forbids an employer from refusing to hire someone “solely on the basis of such person’s or employee’s status as a qualifying patient” (Conn. Gen. Stat. § 21a-408p(b)(3)). However, the court reasoned that under this proposed restrictive interpretation, employers would be “free to fire status-qualifying patients based on their actual use of medical marijuana—the very purpose for which a patient has sought and obtained a qualifying status. That makes no sense and would render the statute’s protection against PUMA-based discrimination a nullity,” it concluded. There would be no reason for a patient to seek PUMA status if not to use medical marijuana as permitted under PUMA.

The court also addressed the statutory language that allowed employers 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,” suggesting that by negative implication, this language shows that PUMA protects a qualifying patient for the use and influence of medical marijuana outside working hours.

Judicial estoppel. In brief, the court also would not apply judicial estoppel to bar the applicant’s claim based on her state agency charge that she was she was discriminated against on the basis of her PTSD, finding it not “clearly inconsistent” with her claim here that she was discriminated for using medical marijuana to treat her PTSD. Plus, the Connecticut Commission on Human Rights and Opportunities (CHRO) had not adopted or accepted her claim, which she had asked to withdraw.

Marinol vs. marijuana. Then there was the confusion about whether the applicant used Marinol, a Schedule III substance, rather than medical marijuana under PUMA; she referenced Marinol in her complaint, deposition, and briefing. The applicant explained that she erred in using the term “Marinol” and had assumed that that was the trade name for her pills because that was the term used by the third-party drug testing company, but the medicine she used was not actually Marinol, but synthetic marijuana pills obtained through Connecticut’s medical marijuana program. However, the court stressed there was no dispute that the applicant is a qualifying patient under PUMA, that she consumes synthetic marijuana pills pursuant to that status, and that the positive THC test results stemmed from this protected marijuana use—and that “both parties were aware of all of these facts.” There was no merit to the employer’s argument that her medical marijuana use was not subject to protection under PUMA.

No emotional distress claim, no attorneys’ fees, no punitive damages. Although the applicant argued the employer knew by July 25 that she was a medical marijuana user and that it would not hire her if she had a positive drug test, but it waited eight days to tell her that—by which time her prior position was unavailable—the court did not find this sufficiently supported an emotional distress claim. Despite knowing that her job offer was contingent on successful background screenings, the applicant chose to give her two weeks’ notice to her employer beforehand. Accordingly, the court granted summary judgment to the employer on her claim for negligent infliction of emotional distress. And because PUMA does not expressly provide for attorney’s fees or punitive damages, the court similarly granted summary judgment against her request for attorneys’ fees and punitive damages.

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