Drug Test Should Not Have Disqualified Medical Marijuana User, Federal Court Rules

Author: David B. Weisenfeld, XpertHR Legal Editor

September 12, 2018

A failed drug test should not have been a reason for refusing to hire a registered medical marijuana user, a federal court in Connecticut has ruled. In Noffsinger v. SSC Niantic Operating Company, a nursing facility offered a job to an applicant who suffered from post-traumatic stress disorder (PTSD), but rescinded the offer after she tested positive for marijuana.

Connecticut's Palliative Use of Marijuana Act includes an anti-discrimination provision that bars an employer from refusing to hire a person, or from discharging him or her, solely because of that person's status as a qualifying medical marijuana patient. But the employer noted that marijuana is illegal under federal law. Thus, it argued that the federal Drug-Free Workplace Act (DFWA) prohibited it from hiring the applicant because the law bars federal contractors from allowing employees to use illegal drugs.

In rejecting that argument, the court noted that the DFWA neither requires drug testing nor prohibits federal contractors from employing someone who uses medical marijuana outside the workplace in accordance with a program approved by state law.

The court also reasoned that the employer's position would effectively make the Connecticut medical marijuana law's anti-discrimination provision useless if a covered applicant or employee could not use the drug outside of working hours. In a ruling last year, the same district court held that the federal marijuana ban did not preempt Connecticut's protections.

Connecticut recently expanded the list of qualifying conditions under its medical marijuana law to include:

  • Severe rheumatoid arthritis;
  • Spasticity;
  • Hydrocephalus;
  • Intractable headache syndromes;
  • Muscular dystrophy; and
  • Neuropathic facial pain.

Neighboring states have also ruled for employees of late in cases involving medical marijuana users who lost out on jobs due to preemployment drug tests.

For instance, the Massachusetts Supreme Court held that a newly hired employee with Crohn's disease who tested positive for marijuana use could sue her employer for handicap discrimination. And in Rhode Island, a state court found an employer liable for refusing to hire a medical marijuana cardholder for a paid internship after the applicant admitted she would test positive on the company's mandatory drug test.

Speaking with XpertHR last year about those rulings, Jackson Lewis employment attorney Kathyrn Russo, of the firm's Long Island, New York, office, said these results "highlight the need for employers to consider the marijuana laws affecting their workplaces before an issue arises."