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Federal District Court Finds Connecticut Law Barring Employment Discrimination Against Medical Marijuana Users is NOT preempted

Posted by on Tuesday, August 15, 2017 in News, Updates.

The decision in Noffsinger v. SSC Niantic Operating Co., LLC (Dist. Conn. 2017), is significant because it departs from a handful of earlier decisions that have found or at least assumed state employment protections were preempted. Those decisions are discussed on pages 672-81 of the book.

Even though I largely agree with the result in Noffsinger, the court’s reasoning (especially regarding obstacle preemption) is rather cursory and leaves some key arguments (like why Congress might want to preempt state employment protections) unaddressed. The key passage in the decision can be found on pages 10-11:

“Given that the CSA nowhere prohibits employers from hiring applicants who may be engaged in illegal drug use, defendant has not established the sort of ‘positive conflict’ between [state law] and the CSA that is required for preemption under the very terms of the CSA. . . . Nor does any tension between [state law] and the CSA rise to the level of the ‘sharp’ conflict required to establish obstacle preemption under the case law.”

The Noffsinger decision is less significant for recognizing a private cause of action against employers. That’s because Connecticut’s medical marijuana law, unlike the Massachusetts law at issue in Barbuto, expressly bars employers from “refus[ing] to hire a person or . . . discharg[ing], penalize[ing] or threaten[ing] an employee solely on the basis of such person’s or employee’s status as a qualifying patient.”

Hat tip to Doug Greene and Doug Berman for bringing the case to my attention.

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