Employers (Including Federal Contractors) Must Permit Off-Duty Medical Marijuana Use Under Connecticut Law

A federal district court has ruled that a company discriminated against an applicant, in violation of  Connecticut’s Palliative Use of Marijuana Act (PUMA), when it refused to hire her because of her positive drug test for medical marijuana use.

PUMA provides, in relevant part,

[U]nless required by federal law or required to obtain funding: . . . (3) 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 sections 21a-408 to 21a-408n, inclusive. 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.

The Court’s Decision.   In Noffsinger v SSC Niantic Operating Company LLC, the employer first argued that, as a federal contractor, it was subject to federal law that prohibited the applicant’s hire – the Drug Free Workplace Act (DFWA). The court rejected this argument, however, noting that the DFWA does not require drug testing or prohibit the employment of individuals using illegal drugs outside the workplace. Although the employer may have chosen a zero tolerance policy to effectuate the required good faith efforts to ensure a drug free workplace, the policy was not actually required by federal law.

The court also rejected the employer’s argument that its employment of a medical marijuana user in violation of federal law amounts to a defrauding of the government, in violation of the False Claims Act. The court stated that, because no federal law bars hiring based on an applicant’s off-duty use of medical marijuana, there is no fraud.

The employer further argued that PUMA prohibits discrimination only on the basis of an individual’s status as a medical marijuana use, but not the actual use of marijuana. The court found the employer’s argument “makes no sense,” as “there would be no reason for a patient to seek PUMA status if not to use medical marijuana as permitted under PUMA.”

Finally, the court noted that the statutory language only addresses employer’s ability to discipline for using or being under the influence of marijuana during work hours – and therefore by negative implication, the statute protects the off-duty use of marijuana.

Lessons Learned.  Earlier in this case, the court had ruled that PUMA was not preempted by the federal Controlled Substances Act, under which marijuana is deemed an illegal drug, and that employers may have to permit the use of medical marijuana under state law. Now, this case addresses for the first time the impact of a state medical marijuana law on federal contractors’ obligations under the federal Drug Free Workplace Act. Some commentators had argued that federal contractors did not have to allow the off-duty use of marijuana, even pursuant to state medical marijuana laws. This case has undercut that position. Connecticut employers, other than those that are subject to federal laws or rules that specifically prohibit marijuana use by employees, must now tolerate the off-duty use of medical marijuana. Employers in other states with medical marijuana laws should be aware that whether off-duty use is required to be allowed will depend on the specific language of the state statute.