A federal district court in the District of Connecticut recently granted summary judgment to a plaintiff who brought a claim against an employer that withdrew a job offer due to the plaintiff’s positive drug test for marijuana.  This case offers lessons for businesses wading into this new and developing area of employment law.

Cannabis and the law
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In Noffsinger, the plaintiff was registered under Connecticut’s medical marijuana program and used marijuana to treat post-traumatic stress disorder. Noffsinger initially received a job offer, but it was withdrawn after she informed the employer that she was a medical marijuana user, and later tested positive for THC on a pre-employment drug test. She filed suit, and last year, the district court denied the employer’s motion to dismiss. After discovery, both sides moved for summary judgment on plaintiff’s claim under the Connecticut Palliative Use of Marijuana Act (PUMA).

The court first held there was an implied private right of action under the PUMA, and ultimately that plaintiff established her claim as a matter of law. The Court rejected several of the employer’s arguments in favor of its decision to withdraw the job offer, including that hiring Noffsinger would place the employer in violation of the Drug Free Workplace Act and the Federal False Claims Act due to its status as a federal contractor. Finally, the Court rejected the employer’s argument that while the PUMA protects Plaintiff’s status as a medical marijuana user, it does not specifically protect her use of medical marijuana.

The case is Noffsinger v. SSC Niantic Operating, No. 3:16-cv-01983 (D. Conn.). If you are interested in reviewing a copy of the Opinion, please contact me.

Lessons from the Decision

When dealing with employees who are qualified users under a state-sanctioned medical marijuana program, employers should first and foremost engage the employee in the interactive process to determine if an accommodation for the off-site use of medical marijuana is feasible. This decision must be deliberative and well-documented. Any such decision should not be based on the employee’s “status” as a marijuana user, but rather on the hardship in accommodating the use of marijuana, due to legal, safety, or employee performance concerns.

Fox Rothschild recently published a comprehensive guide for employers entitled Employment Compliance in the Age of Legalized Marijuana where we discuss this topic in more detail and provide employers with more takeaways and best practices.

Joseph McNelis works in Fox Rothschild’s Blue Bell, PA office and focuses his practice on labor and employment matters. Joe also tracks legal developments in the cannabis industry in Pennsylvania and nationwide. Joe can be contacted at 610-397-2332 or jmcnelis@foxrothschild.com.