Read Case Study Noffsinger v. SSC Niantic Operation Co., LLC, dba Bride Brook Health and Rehb

Noffsinger v. SSC Niantic Operating Co., LLC, d/b/a Bride Brook Health & Rehab. Ctr., 2018 U.S. Dist. LEXIS 150453 (D. Conn. Sept. 5, 2018).

A federal court in Connecticut has held that refusing to hire a medical marijuana user who tested positive on a preemployment drug test violates the state's medical marijuana law. The court granted summary judgment to the applicant on her claim for employment discrimination but declined to award her attorneys' fees or punitive damages. Meyer, D.J. ***

This is a case about a claim of employment discrimination on the basis of a person's use of medical marijuana as authorized under the Connecticut Palliative Use of Marijuana Act (PUMA), Conn. Gen. Stat. 21a-408 et seq. PUMA prescribes qualifying conditions for a person to use marijuana for medicinal purposes. It also contains an anti-discrimination 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. See Conn. Gen. Stat. 21a-408p(b)(3). Plaintiff Katelin Noffsinger accepted a job offer from defendant SSC Niantic Operating Company, LLC d/b/a Bride Brook Health & Rehabilitation Center. But the offer was contingent on drug testing, and plaintiff told defendant that she was qualified under PUMA to use marijuana for medical purposes to treat her post-traumatic stress disorder. After her drug test came back positive for THC consistent with the use of marijuana, defendant rescinded its job offer. Plaintiff soon filed this lawsuit against defendant. I have previously ruled that PUMA creates a private right of action and that PUMA's anti-discrimination provision is not preempted by federal law. See Noffsinger v. SSC Niantic Operating Co. LLC, 273 F. Supp. 3d 326 (D. 2 Conn. 2017). Since then the parties have conducted discovery and have now cross-moved for summary judgment. For the reasons set forth below, I conclude that plaintiff is entitled to judgment as a matter of law in her favor on her claim of employment discrimination under PUMA.

The parties have cross-moved for summary judgment on plaintiff's claim that defendant discriminated against her in violation of PUMA when it rescinded her job offer. The statute 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 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. Conn. Gen. Stat. 21a408p(b)(3).

The facts are undisputed here that plaintiff's job offer was rescinded because of her positive drug test result and that this positive drug test result stemmed from plaintiff's use of medical marijuana pursuant to her qualifying status under PUMA. Although defendant raises several arguments to avoid the grant of summary judgment, I conclude for the reasons below that all of these arguments are meritless.

First, defendant argues that it is exempt from PUMA's anti-discrimination provision because the statute allows for an exception if discrimination is "required by federal law or required to obtain federal funding." Conn. Gen. Stat. 21a[1]408p(b). According to defendant, the federal Drug Free Workplace Act (DFWA) barred it from hiring plaintiff. The DFWA requires federal contractors like defendant to make a "good faith effort" to maintain a drug-free workplace by taking certain measures, such as publishing a statement regarding use of illegal drugs in the workplace and establishing a drug-free awareness program. See 41 U.S.C. 8102. Defendant states that it adopted its substance abuse policy in order to comply with the DFWA, such that any actions it takes in accordance with that policy are outside the scope of liability under 21a-408p. I do not agree that the DFWA required defendant to rescind plaintiff's job offer. The DFWA does not require drug testing.

See Harris v. Aerospace Testing All., 2008 WL 111979, at *4 (E.D. Tenn. 2008). Nor does the DFWA 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. That defendant has chosen to utilize a zero tolerance drug testing policy in order 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." Accordingly, I reject defendant's argument that it would violate the DFWA for it to hire someone like plaintiff who uses medical marijuana during off hours.

Answer Case Questions. Provide a critical analysis of each question using case Employment law concepts.

1. The Supremacy Clause of the U.S. Constitution states that if there is a conflict between federal and state law, federal law wins. Given that that the federal government still criminalizes all uses of marijuana, did the judge in this case rule correctly?

2. The Drug Free Workplace Act requires federal contractors like the defendant in this case to make a "good faith effort" to maintain a drug-free workplace. Wouldn't a zero-tolerance policy for all federally illegal drugs qualify as a "good faith effort"? Would the argument in this case change if the defendant was not a federal contractor but simply a private company in Connecticut not soliciting federal contracts?