NOTES FROM THE EDGE

Ten states and Washington, DC, have now legalized marijuana for recreational use for adults over 21. And 33 states have legalized medical marijuana. Only 12 states however, specifically ban employment discrimination against medical marijuana users. All states allow for employee discipline or termination if an employee is under the influence of marijuana in the workplace.

In states that have legalized marijuana but whose legalization laws do not include anti-discrimination statutes, employees who have suffered adverse employment decisions as a result of their use of legal marijuana have attempted to bring claims alleging wrongful termination under various provisions of state law protecting against termination of employment in violation of public policy.  Most of these claims have failed.  See, e.g., Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 431 * (6th Cir. 2012)(holding that “private employees are not protected from disciplinary action as a result of their use of medical marijuana, nor are private employers required to accommodate the use of medical marijuana in the workplace.”); Coats v. Dish Network, LLC, 350 P.3d 849, 2015 CO 44 * (Colo. 2015) (plaintiff was not protected under statute that prohibited employer from terminating employee due to employee’s participating in “lawful” activities off the premises of the employer during non-working hours, because court interpreted “lawful” to mean lawful under both state and federal law); Stanley v. Cty. of Bernalillo Comm’rs, 2015 U.S. Dist. LEXIS 109979, 2015 WL 4997159, at *5 * (D.N.M. 2015) (citing additional cases in which courts have “rejected the plaintiff’s claims that state anti-discrimination laws prohibit private employers from terminating employees for state-authorized medical marijuana usage as a matter of statutory interpretation, and not on federal-preemption grounds”).

There are 12 states whose medical marijuana laws contain some type of provision baring employers from firing or refusing to hire an employee who uses medical marijuana in compliance with the requirements of state law – Delaware, Connecticut, Rhode Island, Arizona, Illinois, Maine, Nevada, New York, Pennsylvania, Arkansas, Massachusetts, and Minnesota.  In these states, employees may assert claims alleging wrongful termination as the termination relates to their use of medical marijuana, despite the existence of federal laws making the use of marijuana illegal.

You might ask, how can employers be required to tolerate applicants and employees using a drug that is still illegal under federal law? In 1970, Congress passed the Controlled Substances Act (CSA) to ban or regulate certain controlled substances. Under the CSA’s classification system, cannabis is a Schedule I drug, defined as illegal on the premise that it has no accepted medical use and has a high potential for abuse. 21 U.S.C. § 812 *. Some employers defending lawsuits states in which marijuana has been legalized, have cited the CSA to argue that the marijuana discrimination law being invoked against them is preempted by federal law.

Judicial responses to the preemption argument have been mixed, with the recent trend going against preemption in relation to state laws containing specific anti-discrimination provisions. A 2017 decision by a Connecticut federal district court held that the CSA did not preempt a Connecticut statute that protects employees and job applicants from employment discrimination based on medical marijuana use because the CSA does not specifically regulate the employment relationship. See, e.g., Noffsinger v. SSC Niantic Operating Co., LLC, 273 F. Supp. 3d 326, 333 * (D. Conn. 2017).

In the Noffsinger case, Health care worker Katelin Noffsinger told a potential employer that she took medical marijuana to deal with the effects of a car accident, but when a drug test came back positive, the nursing home rescinded her job offer anyway.  The court ruled that the nursing home, which had cited federal laws against pot use, violated an anti-discrimination provision of the Connecticut’s medical marijuana law.

The Noffsinger court reasoned that the CSA is not a strongly preemptive law like other federal laws, such as ERISA. Rather, the CSA preempts state law only to the extent that “there is a positive conflict between the CSA and that State law so that the two cannot consistently stand together.” Id.  The Court further concluded that the federal Drug Free Workplace Act, which many employers including federal contractors rely on for policies on drug testing, does not actually require drug testing and does not prohibit federal contractors from employing people who use medical marijuana outside the workplace in accordance with state law.

The Connecticut decision was the first ruling of its kind in a federal case and followed similar recent rulings against employers by state courts in Massachusetts and Rhode Island. See Callaghan v. Darlington Fabrics Corp., 2017 R.I. Super. LEXIS 88 * (R.I. Super. May 23, 2017), agreed. See id. at *89 (Congress is aware of state medical marijuana statutes and “has decided to tolerate the tension…between the federal and state regimes.”); Barbuto v. Advantage Sales & Marketing, LLC, 477 Mass. 456 * (2017)(holding that an employer may be subject to a disability discrimination claim under Massachusetts law if the employer takes an adverse employment action or otherwise discriminates against a “qualified handicapped employee” based on the employee’s off-site, off-duty use of lawfully-prescribed medical marijuana).

The Delaware high court, in Chance v. Kraft Heinz Foods Co., No. K18C-01-056 NEP, 2018 Del. Super. LEXIS 1773, at *38 * (Super. Ct. Dec. 17, 2018), followed suit, additionally relying upon a conclusion that while the CSA classifies marijuana as a Schedule I substance and does not currently make exceptions for medical use, it does not make it illegal to employ someone who uses marijuana. Id.

Of course, these decisions are limited to the context of state marijuana laws containing anti-discrimination provisions.  As previously noted, only 12 such statutes have been passed.  In discrimination cases arising in states that do not have such anti-discrimination provisions in marijuana laws, the results have been different.  Lambdin v. Marriott Resorts Hospitality Group, No. 16-00004-HG-KJM, 2017 U.S. Dist. LEXIS 149570, at *18-22 * (Sept. 14, 2017) (holding that the CSA does preempt Hawaii’s cannabis law, which does not include a non-discrimination provision, and concluding that an employer did not need to accommodate an employee’s medical cannabis use because all cannabis–medical or not–remains prohibited under federal law).

Kentucky House Bill 136, which has been introduced in the 2019 legislative session and enjoys bi-partisan support, could legalize marijuana in Kentucky for medical purposes.  The legislative session ends March 29^th, and only then will we know if the Bill will become law.

Under the Bill, the state would issue licenses for medical marijuana cultivation, processing and dispensaries across the state. To use marijuana, residents would need to obtain a recommendation from a health practitioner registered to administer controlled substances and meet certain requirements. Users would have to adhere to restrictions, including limits on how much cannabis they can have at one time, and could face penalties for distributing the drug. Health providers who recommend cannabis would be tracked by the Kentucky Board of Medical Licensure to avoid the equivalent of “pill mills” that sprung up with pain pills.

Cities could vote to ban dispensaries from opening. And qualified cardholders could grow up to six mature marijuana plants. Law enforcement would know which card carriers had a license to grow marijuana. In addition, there could be no advertising or public consumption of the drug. Recent felons could not participate and licenses would be handled by the Alcoholic Beverage Control agency.

House Bill 136 does contain, however, an anti-discrimination provision similar to those in the 12 state statutes referenced, supra.  This provision, if included in the final Bill would seemingly prevent employers from taking adverse action against an employee based on his or her use of medical marijuana.  The specific language of the Bill is as follows: “  (1) A qualified patient or visiting qualified patient who uses medicinal marijuana  shall be afforded all the same rights under state and local law, including those  guaranteed under KRS Chapter 344, as the individual would have been afforded 17 if he or she were solely prescribed pharmaceutical medications,” and  “It shall be an unlawful practice for an employer: (a) To fail or refuse to hire, or to discharge any individual, or otherwise to discriminate against an individual with respect to compensation, terms,  conditions, or privileges of employment, because the individual is a  cardholder or is otherwise permitted to use medicinal marijuana.”

If passed, this legislation could raise a series of issues for Kentucky employers, including:

• To which limited categories of employees (e.g., truck drivers regulated by the U.S. Department of Transportation) will federal preemption of state cannabis law apply? Federal regulations still prohibit marijuana use. And under the regulations, several classes of employees must undergo regular testing for marijuana. For example, the Department of Transportation has issued guidance for its Drug and Alcohol Testing Regulations, stating that “it remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation’s regulations to use marijuana.” Safety‐sensitive transportation workers include pilots, school bus drivers, truck drivers, train engineers, subway operators, aircraft maintenance personnel, transit fire‐armed security personnel, ship captains and pipeline emergency response personnel, among others.
• Whether Kentucky employers be required to accommodate employees who, because they use medical cannabis, request adjusted work schedules?
• Whether there be special carve-outs for safety-sensitive job positions?

• Jessica Winters, Managing Member

This post is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from The Winters Law Group LLC, or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.