Decision on medical marijuana and preemption holds lessons for Maine employers

A U.S. district court recently held that federal law does not preempt the anti-discrimination provision in Connecticut’s medical marijuana law prohibiting employers from terminating or refusing to hire individuals based on their status as qualifying medical marijuana patients.  The ruling is important for Maine employers because of the similarities between Maine’s and Connecticut’s medical marijuana statutes.

The plaintiff in the case, Noffsinger v. SSC Niantic Operating Co., LLC, had received a verbal offer of employment from a nursing facility, but was not hired after she disclosed that she was a qualifying medical marijuana patient and tested positive for marijuana on a pre-employment drug screen.   Noffsinger sued in state court claiming that the facility’s refusal to hire her violated the anti-discrimination provision in Connecticut’s medical marijuana law.  The facility removed the case to federal court, where it argued that Noffsinger’s complaint should be dismissed because federal law preempted Connecticut’s medical marijuana statute. 

In denying the facility’s motion to dismiss, the district court found no actual conflict between Connecticut’s medical marijuana law and the federal laws identified by the facility.  For example, the court found that the Controlled Substances Act (CSA) did not preempt Connecticut’s law because the CSA regulates drugs, not employment, and therefore did not conflict with the employment-related provisions in Connecticut’s law.  The court also found no conflict with the ADA; although the ADA does not protect current users of illegal drugs, the court observed that Connecticut’s law did not authorize the use of drugs in the workplace, and nothing in the ADA suggested that it was intended to regulate the use of drugs outside the workplace or limit the abilities of states to do so.  Finally, although the facility argued that Connecticut’s anti-discrimination provision was preempted by the Federal Food, Drug, and Cosmetic Act, which prohibits the sale or distribution of unapproved medications, the court found that it, like the CSA, did not govern the employment relationship and therefore did not preempt Connecticut’s anti-discrimination provision.

This decision is important for Maine employers because, like Connecticut’s statute, Maine’s medical marijuana statute contains an anti-discrimination provision that prohibits employers from making employment decisions based on an individual’s status as a medical marijuana patient.  The decision therefore provides a potential roadmap on how an employer’s preemption arguments might play out with respect to Maine’s medical marijuana law.

New Developments in Medical Marijuana and the Workplace

According to the National Conference of State Legislatures, twenty-three states now have medical marijuana laws on the books.  The conventional wisdom is that these laws bring with them greater protections for employees who are users of medical marijuana.  Court rulings over the last several years, however, have shown that this conventional wisdom is not always correct and that not all state medical marijuana laws are created equal.

For example, last summer the Colorado Supreme Court held that although Colorado law allowed for the use of medical marijuana, that law did not prevent an employer from terminating a medical marijuana user who had tested positive for marijuana in violation of the company’s zero-tolerance drug policy.  Reaching a similar conclusion, a federal district court in Washington recently dismissed an employee’s discrimination complaint and found that the law in Washington does not require employers to accommodate the use of medical marijuana where they have a drug-free workplace policy.  Swaw v. Safeway, Inc. (W.D. Wash. 2015).  In Swaw, the court pointed to an earlier 2011 decision from the Washington Supreme Court, which held that Washington’s medical marijuana law “does not regulate the conduct of a private employer or protect an employee from being discharged because of authorized medical marijuana use.”

That courts in Colorado and Washington (and California and Oregon, to name a few others) have construed medical marijuana laws in favor of employers does not mean that employers in other states with medical marijuana laws can assume their courts would reach similar interpretations.  This is because the medical marijuana laws in some states, such as Washington and Colorado, simply de-criminalize medical marijuana without providing any specific employment protections.  Other states, however, such as Maine, include specific protections that prohibit employers from taking adverse action against an employee based on his or her status as a medical marijuana user.  Consequently, court rulings from “de-criminalization” states should not be viewed as indicative of how a court would rule in another jurisdiction, such as Maine, where the applicable law expressly provides for some level of employment protection for medical marijuana users.

Although Maine’s courts have had little opportunity to weigh in on the issue of medical marijuana, Maine’s Department of Labor has recently issued a report that recommends several changes to the state’s drug testing law.  The report is the culmination of a workgroup that was convened by MDOL to explore a number of issues relating to substance use and abuse in the workplace, including the medical use of marijuana. The report, which is available here, recommends two changes.  The first change is directed at streamlining the process to approve drug testing policies and recommends the use of a uniform drug testing policy, which would be prepared by MDOL and used by all employers in the state. The second change involves replacing the “probable cause” standard for drug testing with a program whereby employers would receive training to detect impairments, regardless of their cause, and employers would then have the option to refer the alleged impairment case to a “preferred occupational provider” to confirm the impairment and make recommendations to address or accommodate the cause.