Update: Connecticut Employment Discrimination Case (Noffsinger v. SSC Niantic)
A federal judge in Connecticut has issued another notable ruling in Noffsinger v. SSC Niantic Operating Co., LLC. In particular, the judge just granted summary judgment for the plaintiff on her claim that the defendant company violated Connecticut’s medical marijuana law (known as PUMA—the Palliative Use of Marijuana Act) when it rescinded her job offer after she tested positive for marijuana in a pre-employment drug test. (The case fits neatly into Chapter 13, pages 662-681, which discusses the laws regulating employment discrimination against marijuana users.)
In an earlier ruling, the court had rejected the defendant’s motion to dismiss the suit as preempted by federal law. I blogged about the significance of that ruling here. In the latest ruling, the court rejected two additional legal arguments raised by the defendant.
I’ll provide some brief comments on this latest decision below. But first, let me quote the key parts of the court’s opinion:
“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 After her drug test came back positive for THC consistent with the use of marijuana, defendant rescinded its job offer.
. . .
On August 22, 2016, plaintiff filed a complaint . . . alleging [inter alia] . . . a violation of PUMA’s anti-discrimination provision. . . [In relevant part, PUMA provides that:
unless 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 or primary caregiver under [PUMA]. 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. § 21a-408p(b)(3).]
Defendant moved to dismiss plaintiff’s cause of action under PUMA . . . , primarily on grounds that PUMA did not provide for a private right of action and that federal law preempted PUMA. I rejected these arguments. . . . [After further discovery, both parties filed motions for summary judgment on the PUMA claim.]
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-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. . . . 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.
. . .
Defendant next argues 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 in accordance with a PUMA program. For this argument, defendant relies on the language of the statute 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. § 21a408p(b)(3). But the language and purpose of the statute make clear that it protects employees from discrimination based on their use of medical marijuana pursuant to their qualifying status under PUMA. Under defendant’s restrictive interpretation of the statute, 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, because there would be no reason for a patient to seek PUMA status if not to use medical marijuana as permitted under PUMA.
Moreover, the statute provides that ‘[n]othing 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.’ . . . By negative implication, this language makes clear that PUMA protects a qualifying patient for the use of medical marijuana outside working hours and in the absence of any influence during working hours.”
The rest of the opinion (it’s only 13 pages, including some issues that are not relevant here) can be found here.
Since there were no factual issues in dispute regarding liability, the court proceeded to grant the plaintiff’s motion for summary judgement on her PUMA claim. In effect, this means the only issue left for the court to address is damages—i.e., how much money the defendant must pay the plaintiff for violating PUMA.
Let me share a few thoughts on this latest ruling and its broader ramifications.
First, I think the court reached the correct result on both arguments raised by the defendant. Regarding DFWA, the court is correct that the federal statute imposes only limited obligations on employers (and then, only employers who are federal contractors/grant recipients, like SSC Niantic). As the name of the statute suggests, DFWA simply requires covered employers to keep drugs out of the workplace; it does not require employers to police the personal, off the worksite drug behaviors of their employees.
Indeed, the defendants DFWA argument is essentially a rehash of the argument it previously lost–namely, that PUMA’s anti-discrimination provision is preempted by federal law. After all, if federal law really required employers to fire employees for using federally illicit drugs off the job, any state law that required accommodation of such drug use would assuredly be preempted by federal law (and the provision of PUMA exempting employers from such a duty of accommodation would be superfluous). Since the court had already found that PUMA was not preempted, its ruling on the defendant’s DFWA argument is hardly surprising.
It’s worth noting that many other third-parties–not just employers–raise similar concerns over loss of federal funding/contracts when dealing with state-law-abiding marijuana users. As discussed in my book (see Chapter 14), for example, a similar condition in federal grants to colleges appears to require those institutions to bar marijuana use and possession on their campuses. This is why, as I discuss in Chapter 14, all (or nearly all) colleges bar qualified medical marijuana patients from possessing or using marijuana on school grounds (in dorms, classrooms, etc.).
But as in Noffsinger, federal grant recipients/contractors sometimes read these restrictions more broadly than is necessary. For example, until recently, all states barred possession and use of marijuana in K-12 schools at least in part because they believed –erroneously, it turns out–that those schools were subject to the same grant conditions as colleges. (As I explain in Chapter 14, federal grants (surprisingly) do NOT require K-12 schools to maintain drug free campuses.) Since states have come to recognize this mistake they have started permitting possession and use of medical marijuana by qualified patients and their caregivers in K-12 schools.
The Noffsinger court’s analysis of the second issue in the case was also correct. To be sure, there might be a technical difference between firing (refusing to hire, etc.) someone because they used drugs sometime recently rather than because they’re a user of drugs more generally. But suggesting that PUMA adopted such a formalistic distinction would (as the court suggests) gut the protections afforded by the statute.
The court’s reasoning on this second issue could provide some guidance on other, related issues as well. Many states have barred other forms of discrimination based on one’s status as a qualified medical marijuana user. For example, the book discusses similar language states have adopted to bar housing discrimination based on one’s status as a qualified medical marijuana patient (see particularly pp. 659-661, including n.1 and n.4 Problem 13.7). Courts addressing housing discrimination and similar claims can now look to the Noffsinger case for help in interpreting the laws that apply to those claims. Indeed, one of big themes I pursue in the book concerns the benefit of looking across substantive areas of law for guidance on many legal disputes–a lesson that gets overlooked when lawyers view the law as comprising specialized (and unconnected) silos.
Lastly, the Noffsinger case is significant because it appears to be among the first to find a defendant liable for discrimination based on an employee’s state authorized marijuana use. I know of other cases that are pending, including Barbuto in Massachusetts, which I blogged about here, but those cases have not yet resulted in verdicts.