Safety and OSHA News

Recent court cases rule in favor of employees using medical pot: What’s going on?

Has a legal tide turned when it comes to workers who have prescriptions for medical marijuana? A judge’s explanation of his ruling in a Connecticut case points out a distinction that is causing some cases to go in favor of the employee. 

Katelin Noffsinger’s doctor prescribed medical marijuana to treat her post-traumatic stress disorder (PTSD), specifically, to help her sleep. The prescription was for one capsule of Marinol, a synthetic form of cannabis, each night.

Noffsinger was working as a recreation therapist for a long-term care and rehab provider when she was recruited for a director of recreational therapy at Bride Brook, a nursing facility in Niantic, CT.

Bride Brook offered her a job, and Noffsinger gave notice where she was working. A drug screen was required before she could start at Bride Brook. Noffsinger says she told her hiring manager that she had a prescription for medical marijuana. Nevertheless, when her drug test came back positive for pot, Bride Brook rescinded its offer. Noffsinger also couldn’t go back to her previous job because the employer filled her position.

Noffsinger sued Bride Brook because Connecticut’s medical marijuana law bars employers from firing or refusing to hire an employee who uses medical marijuana in compliance with the law.

Bride Brook asked for Noffsinger’s lawsuit to be thrown out, arguing that the federal Controlled Substances Act (CSA) classifies marijuana as an illegal drug, and that precludes enforcement of the Connecticut law.

The employer made several different arguments in an attempt to get the lawsuit thrown out. Here’s the one that makes the Connecticut case stand out from some others:

Bride Brook’s argument was based largely on a case in which the Oregon Supreme Court determined that Oregon’s medical marijuana statute was preempted by the CSA.

The federal court deciding whether to throw out Noffsinger’s lawsuit noted that Oregon’s medical marijuana law doesn’t contain a provision barring employment discrimination for employees with prescriptions for medical pot.

“Although most cases dealing with the CSA’s preemption of state medical marijuana statutes have come out in favor of employers, these cases have not concerned statutes with specific anti-discrimination provisions,” the court wrote. The judge noted one court recently held that the CSA didn’t preempt the workplace discrimination provision in Rhode Island’s medical pot law.

Eight other states besides Connecticut have medical marijuana laws that include employment anti-discrimination protection: Arizona, Delaware, Illinois, Maine, Nevada, New York, Minnesota and Rhode Island.

Courts in states including Michigan and Colorado have ruled in favor of employers in marijuana cases where marijuana use was legal in the state but not allowed by an employer.

Best bet for all employers: Check with legal counsel on cases that have been decided in your state.

(Katelin Noffsinger v. SSC Niantic Operating Co. LLC dba Bride Brook Nursing & Rehabilitation Center, U.S. Dist. Crt. 4, No. 3:16-cv-01938, 8/8/17)

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