The courts are catching up to the reality of state’s marijuana laws – or so it seems in a couple of cases in New England, where people accused of using marijuana in the workplace are now free to either continue working at their jobs or find new ones without being chased by a history as a workplace drug user.
Some landmark legal decisions are making headlines, like the Noffsinger case in Connecticut.
This was a case involving someone who wasn’t even hired yet – Katelin Noffsinger, diagnosed with Post Traumatic Stress Disorder (PTSD) in 2015 and recommended by her doctor to use medical marijuana for treatment.
She duly registered as a medical marijuana patient as required under Connecticut’s Palliative Use of Marijuana Act (PUMA), and began taking synthetic cannabis, Marinol, each night.
PUMA is designed to protect employees and job applicants from employment discrimination based on medical marijuana use permitted under state law.
At the time, she was working as a recreation therapist at a long-term care and rehabilitation facility, Touchpoints, but was recruited for a position as director of recreational therapy for Bride Brook, a nursing facility in Niantic, Connecticut. She did a phone interview with an administrator at Bride Brook, Lisa Mailloux, on July 18 and all seemed well. She was offered the job and she accepted. She quit her current job at the time.
Mailloux contacted her on July 20 to set up a time to complete paperwork, which included a drug test. She then met with Mailloux, discussed her PTSD and why she was taking Marinol, and that she was taking it only at night. If there were more medical documents needed, Noffsinger said, she would provide them.
Mailloux processed her application, presumably without asking for additional documentation, and then sent Noffsinger on her way with documents she would need for orientation on August 3.
Noffsinger also provided a urine sample at that time. She looked forward to starting her new job.
On August 2, the day before she was scheduled to start at Bride Brook, the drug testing company informed her she tested positive for cannabis. She called Mailloux to let her know that; Mailloux called back and said the employment offer was rescinded. Worse yet, her job at Touchpoints had already been filled.
So there she was – a PTSD sufferer now unemployed who had followed the rules about her use of medical marijuana, and now found herself in an even more stressful situation. So, she sued Bride Brook, and Bride Brook took her to trial to dismiss her lawsuit.
In a landmark decision, Federal District Court Judge Jeffrey Meyer agreed with Noffsinger that her use of Marinol was in compliance with state law, and the company’s lawsuit was dismissed. “This lawsuit calls upon me to decide if federal law preempts Connecticut law,” Meyer wrote in court documents. “In particular, I must decide if federal law precludes enforcement of a Connecticut law that prohibits employers from firing or refusing to hire someone who uses marijuana for medicinal purposes. I conclude that the answer to that question is “no”, and that a plaintiff who uses marijuana for medicinal purposes in compliance with Connecticut law may maintain a cause of action against an employer who refuses to employ her for this reason. Accordingly, I will largely deny defendant’s motion to dismiss this lawsuit.”
This case marks the first decision that marijuana’s unlawful status under federal law does not bar a discrimination claim based on conduct protected by state medical marijuana laws.
Beyond setting a precedent for other employees and employers in Connecticut, this case has three interesting elements: that you can test positive for using cannabis even when that usage involves synthetic cannabis; that you can be terminated for using synthetic cannabis, which is lawful to use under the Controlled Substance Act; and that, as the judge stated, being denied employment for cannabis use, and firing an already hired employee for cannabis use, has the same weight under the law.
A more recent, and some say more precedent-setting case, was one in Massachusetts that went all the way to the state’s Supreme Judicial Court.
Cristina Barbuto was offered, and subsequently accepted, an entry-level position with Advantage Sales and Marketing (ASM) in late summer of 2014. The company wanted her to take a drug test. She told them she used medical marijuana to treat her Crohn’s disease, which her doctor had prescribed to her, and that she was a qualifying patient under Massachusetts law.
She said that she didn’t use it daily, and would not use it before work or at work. According to court documents, an ASM supervisor confirmed with others in the company that her use of cannabis “should not be a problem”, and told her that it would not be an issue with the company.
She submitted a urine sample for the mandatory drug test, went to the ASM training program, was given a uniform, and went to work to promote ASM products. That evening, she was called by the ASM human resources representative, Meredith Villaruz, who told her she tested positive for marijuana and was terminated. Villaruz told Barbuto that the company didn’t care if she used marijuana to treat her Crohn’s disease because “we follow federal law, not state law.”
The court found that, based on her disease, she was handicapped and that the company discriminated against her because of that illness. “Under Massachusetts law.. the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication. Where, in the opinion of the employee’s physician, medical marijuana is the most effective medication for the employee’s debilitating medical condition, and where any alternative medication whose use would be permitted by the employer’s drug policy would be less effective, an exception to an employer’s drug policy to permit its use is a facially reasonable accommodation.”
The court went on to say that the company should have entered into an “interactive process” with Barbuto to explore an alternative, equally effective medication she could use that was not prohibited by the employer’s drug policy – instead of outright firing her.
There are other similar cases not involving medical marijuana, such as another Connecticut case involving a state employee who was fired from his union job after getting caught smoking a joint in a state-owned truck (he originally claimed he smoked marijuana to handle the stress of a divorce).
His termination was challenged at arbitration, and he ended up being reinstated, suspended without pay for six months instead of being terminated, and subjected to a year of random drug testing. Because six months had already passed from the time when he was fired to the release of the findings of the case, the arbitrator ordered him to be returned to work immediately and get all back pay accruing after the suspension period.
There are likely more cases like this happening right now across the country where medical and recreational marijuana are legalized, as discussions about people who traveled to a legal state, enjoy cannabis, then return to a state where it’s not legal and fear the sudden, allegedly random, workplace drug tests.
Or there may even be more to come right in the heart of the federal government, in Washington, D.C., where recreational use is legal but there are thousands of federal employees wondering what is truly legal for them, and what is not – and waiting for the time when a landmark case on that issue will come into the public spotlight.
Source: Cannabis Business Executive