A Federal District Court in Connecticut has held an employer liable for discrimination under Connecticut state law for rescinding an offer to an employee who tested positive for use of medical marijuana, even though the employer was a federal contractor applying its zero-tolerance drug-testing policy. See Noffsinger v. SSC Niantic Operating Co., LLC, 2018 U.S. Dist. LEXIS 150453 (D. Conn., Sept. 5, 2018).
In this case, Noffsinger accepted a job offer that was contingent on drug testing. She told the employer that she was qualified under Connecticut state law 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 After her drug test came back positive for THC consistent with the use of marijuana, the employer rescinded its offer. Relying on federal law that lists marijuana as an illegal substance, the employer reasoned it could legitimately sever its employment relationship with Noffsinger.
However, the District Court ruled that Connecticut’s state law prohibiting employers from refusing to hire a person or from discharging, penalizing or threatening an employee solely because of the person’s status as a qualifying medical marijuana patient was not preempted by federal law. The court stated that the federal Drug Free Workplace Act (DFWA), upon which many employers rely for pre-employment drug screening, does not require drug testing and does not prohibit employers from employing people who use medical marijuana outside the workplace. The court held that the DFWA only requires an employer to make a “good faith effort” to maintain a drug-free workplace as opposed to authorizing a bar from employment.
Employers in Connecticut and elsewhere should consider the marijuana laws affecting their workplaces. Moreover, employers should closely review their substance abuse policies as well as their pre-employment drug testing practices, especially zero tolerance policies, as states continue to enact and expand protections for users of medical marijuana.
If you have any questions regarding this Alert or other labor or employment related issues, please feel free to contact the author, Michel Bayonne, mbayonne@fordharrison.com, a partner in our Hartford and New York City offices. Of course, you may also contact the FordHarrison attorney with whom you usually work.