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.

For Employers, Recent Decision Highlights Complexity of Medical Marijuana Laws

Last month, the Colorado Supreme Court affirmed the right of an employer to terminate an employee who tests positive for marijuana in violation of the employer’s drug policy.  Although the impact of the decision is largely limited to Colorado, as the case involved only the interpretation of Colorado law, it nonetheless highlights the complex legal landscape that employers face as they navigate both state and federal laws governing marijuana usage.

The employee in this case used medical marijuana off-duty to ameliorate a health condition, a practice permitted under Colorado’s constitution.  At the time of testing, the employee was not under the influence of marijuana, nor was there any evidence that he had used marijuana at work or had been under the influence at work during other times.  The employer, however, had a zero-tolerance drug policy, and when the employee tested positive, it terminated his employment.  The employee sued, claiming that his termination violated Colorado’s off-duty conduct statute, which provides that employers may not terminate employees for engaging in any “lawful activity off the premises of the employer during non-working hours.”

The key issue for the Colorado Supreme Court was whether the employee’s medical marijuana use was a “lawful activity.”  Notwithstanding Colorado’s constitutional amendment allowing for the use of medical marijuana, the Court concluded that for an activity to be “lawful” under the off-duty conduct statute, it must be lawful under both state and federal law.  Because marijuana use remains unlawful under federal law, the Court held that the employee had not engaged in a “lawful activity” that prohibited his termination.

Because only Colorado law was at issue in the Court’s decision, the case is not likely to have immediate impacts in other jurisdictions with medical marijuana laws.  Unlike Colorado, for example, Maine’s medical marijuana statute provides certain employment-related protections that, for obvious reasons, were not at issue in the case.  Nonetheless, the case highlights the continuing divide between federal and state law and the need for employers to proceed with caution in this area.