Connecticut Employer's Defenses On Medical Marijuana User's Discrimination Claim Go Up In Smoke

A federal court in Connecticut recently granted summary judgment to a prospective employee on an employment discrimination claim brought under Connecticut's Palliative Use of Marijuana Act (PUMA). The case, Noffsinger v. SSC Niantic Operating Co., LLC, d/b/a Bride Brook Nursing & Rehab. Ctr. (D. Conn. Sept. 5, 2018) adds to an evolving area of litigation regarding employees who use medical marijuana pursuant to a valid state-approved program.

Bride Brook, a federal contractor, made an employment offer to Noffsinger as an Activities Manager. The offer was subject to the completion of a pre-employment drug screen. Noffsinger disclosed to Bride Brook that she participated in Connecticut's medical marijuana program because she has Post Traumatic Stress Disorder (PTSD). Noffsinger also showed Bride Brook her registration certificate and an empty pill container displaying the name and dosage of her medical marijuana pills. After the drug screen came back positive, Bride Brook rescinded its employment offer.

Noffsinger sued, claiming, among other things, that Bride Brook violated PUMA's anti-discrimination provision. PUMA's anti-discrimination provision provides, "[u]nless required by federal law or required to obtain funding: ... 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." Conn. Gen. Stat. §21a-408p(b)(3).

Last year, the Court rejected Bride Brook's argument that PUMA was preempted by the federal Controlled Substances Act and permitted Noffsinger's PUMA claim to proceed. In doing so, the Court held that PUMA provides a private right of action. The parties then proceeded with discovery and both parties moved for summary judgment.

Bride Brook first argued that it is exempt under PUMA's anti-discrimination provision exception permitting discrimination if "required by federal law or required to obtain federal funding." Bride Brook claimed that the federal Drug Free Workplace Act (DFWA) barred it from hiring Noffsinger because it requires federal contractors such as Bride Brook to make a "good faith effort" to maintain a drug-free workplace. Bride Brook claimed that it adopted a zero tolerance substance abuse policy to comply with the DFWA. The Court rejected this argument, finding that the DFWA does not require drug testing, nor does it prohibit federal contractors from employing someone who uses illegal drugs outside of...