{"id":502,"date":"2018-09-24T16:47:52","date_gmt":"2018-09-24T21:47:52","guid":{"rendered":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/?p=502"},"modified":"2018-09-24T16:47:52","modified_gmt":"2018-09-24T21:47:52","slug":"update-connecticut-employment-discrimination-case-noffsinger-v-ssc-niantic","status":"publish","type":"post","link":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/2018\/09\/update-connecticut-employment-discrimination-case-noffsinger-v-ssc-niantic\/","title":{"rendered":"Update: Connecticut Employment Discrimination Case (Noffsinger v. SSC Niantic)"},"content":{"rendered":"

A federal judge in Connecticut has issued another notable ruling in Noffsinger v. SSC Niantic Operating Co., LLC. <\/em>In particular, the judge just granted summary judgment for the plaintiff on her claim that\u00a0the defendant\u00a0company violated Connecticut\u2019s medical marijuana law (known as PUMA\u2014the Palliative Use of Marijuana Act) when it rescinded her job offer after she tested positive for marijuana in a pre-employment drug test.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.)<\/p>\n

In an earlier ruling, the court had rejected the defendant\u2019s motion to dismiss the suit as preempted by federal law. \u00a0I blogged about the significance of that<\/em> ruling here<\/a>. In the latest ruling, the court rejected two additional legal arguments raised by the defendant.<\/p>\n

I’ll provide some brief comments on\u00a0this latest\u00a0decision below. But first, let me quote the key parts of the court\u2019s opinion:<\/p>\n

\u201cPlaintiff 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 After her drug test came back positive for THC consistent with the use of marijuana, defendant rescinded its job offer.<\/p>\n

. . .<\/p>\n

On August 22, 2016, plaintiff filed a complaint . . . alleging [inter alia] . . . a violation of PUMA\u2019s anti-discrimination provision. . . [In relevant part, PUMA provides that:<\/p>\n

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\u2019s or employee\u2019s status as a qualifying patient or primary caregiver under [PUMA]. Nothing in this subdivision shall restrict an employer\u2019s ability to prohibit the use of intoxicating substances during work hours or restrict an employer\u2019s ability to discipline an employee for being under the influence of intoxicating substances during work hours.<\/p>\n

Conn. Gen. Stat. \u00a7 21a-408p(b)(3).]<\/p>\n

Defendant moved to dismiss plaintiff\u2019s 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.]<\/p>\n

The facts are undisputed here that plaintiff\u2019s job offer was rescinded because of her positive drug test result and that this positive drug test result stemmed from plaintiff\u2019s 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.<\/p>\n

First, defendant argues that it is exempt from PUMA\u2019s anti-discrimination provision because the statute allows for an exception if discrimination is \u2018required by federal law or required to obtain federal funding.\u2019 Conn. Gen. Stat. \u00a7 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 \u2018good faith effort\u2019 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. \u00a7 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 \u00a7 21a-408p.<\/p>\n

I do not agree that the DFWA required defendant to rescind plaintiff\u2019s 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 \u2018required by federal law or required to obtain federal funding.\u2019 Accordingly, I reject defendant\u2019s argument that it would violate the DFWA for it to hire someone like plaintiff who uses medical marijuana during off hours.<\/p>\n

. . .<\/p>\n

Defendant next argues that PUMA prohibits discrimination only on the basis of one\u2019s status as an approved medical marijuana patient but not on account of one\u2019s 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 \u2018solely on the basis of such person\u2019s or employee\u2019s status as a qualifying patient.\u2019 Conn. Gen. Stat. \u00a7 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\u2019s restrictive interpretation of the statute, employers would be free to fire status-qualifying patients based on their actual use of medical marijuana\u2014the very purpose for which a patient has sought and obtained a qualifying status. That makes no sense and would render the statute\u2019s 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.<\/p>\n

Moreover, the statute provides that \u2018[n]othing in this subdivision shall restrict an employer\u2019s ability to prohibit the use of intoxicating substances during work hours or restrict an employer\u2019s ability to discipline an employee for being under the influence of intoxicating substances during work hours.\u2019 . . . 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.\u201d<\/p>\n

The rest of the opinion (it\u2019s only 13 pages, including some issues that are not relevant here) can be found here<\/span><\/a>.<\/p>\n

Since there were no factual issues in dispute regarding liability, the court proceeded to grant the plaintiff\u2019s motion for summary judgement on her PUMA claim. In effect, this means the only issue left for the court to address is damages\u2014i.e., how much money the defendant must pay the plaintiff for violating PUMA.<\/p>\n

Let me share a\u00a0few thoughts on this latest ruling and its broader ramifications.<\/p>\n

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.<\/p>\n

Indeed, the defendants DFWA argument is\u00a0essentially a rehash of the argument it previously lost–namely, that PUMA\u2019s 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\u00a0such drug use would assuredly be preempted by federal law (and the provision of PUMA exempting employers\u00a0from such a duty of accommodation\u00a0would be superfluous). Since the court had already found that PUMA was not preempted, its ruling on the defendant\u2019s DFWA argument is hardly surprising.<\/p>\n

It\u2019s worth noting\u00a0that 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,\u00a0a similar condition in federal grants to colleges appears to require\u00a0those institutions\u00a0to 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.).<\/p>\n

But as in Noffsinger<\/em>,\u00a0federal grant recipients\/contractors\u00a0sometimes 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\u00a0were subject to the same grant conditions as colleges. (As I explain in Chapter 14,\u00a0 federal\u00a0grants (surprisingly)\u00a0do NOT require\u00a0K-12 schools to maintain drug free campuses.) Since states have come to recognize this mistake they have\u00a0started permitting possession and use of medical marijuana by qualified patients and their caregivers in K-12 schools.<\/p>\n

The Noffsinger<\/em> court\u2019s analysis of the second issue in the case was also correct. To be sure, there\u00a0might be a technical difference between\u00a0firing (refusing to hire, etc.) someone because they used<\/em> drugs\u00a0sometime recently rather than because they\u2019re a user<\/em> 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.<\/p>\n

The court\u2019s 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\u2019s status<\/em> as a qualified medical marijuana user. For example, the book discusses similar language states have adopted to bar housing discrimination based on one\u2019s status as a qualified medical \u00a0marijuana 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<\/em> case for help in interpreting\u00a0the laws that apply\u00a0to 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.<\/p>\n

Lastly, the Noffsinger<\/em> case is significant because it\u00a0appears to be\u00a0among the first to find a defendant liable for discrimination based on an employee\u2019s\u00a0 state authorized marijuana use. I know of other cases that are\u00a0 pending, including Barbuto<\/em> in Massachusetts, which I blogged about here<\/a>, but those cases have not yet resulted in verdicts.<\/p>\n","protected":false},"excerpt":{"rendered":"

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\u00a0the defendant\u00a0company violated Connecticut\u2019s medical marijuana law (known as PUMA\u2014the Palliative Use of Marijuana Act) when it rescinded her job offer after she…<\/p>\n","protected":false},"author":6789,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1,4],"tags":[416,6,417,204,9,415,414,380,379,7,15,5],"class_list":["post-502","post","type-post","status-publish","format-standard","hentry","category-news","category-updates","tag-accommodate","tag-cannabis","tag-connecticut","tag-discriminate","tag-discrimination","tag-duty","tag-employ","tag-employee","tag-employer","tag-employment","tag-marihuana","tag-marijuana"],"_links":{"self":[{"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts\/502","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/users\/6789"}],"replies":[{"embeddable":true,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/comments?post=502"}],"version-history":[{"count":2,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts\/502\/revisions"}],"predecessor-version":[{"id":504,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts\/502\/revisions\/504"}],"wp:attachment":[{"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/media?parent=502"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/categories?post=502"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/tags?post=502"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}