Consider the following hypothetical: Mary Jane, a machinist, is battling breast cancer. Your client informs you that Mary Jane tested positive for marijuana, which would normally result in the termination of her employment under the company’s zero-tolerance, drug-free workplace policy. When your client confronted Mary Jane about the failed drug test, Mary Jane responded that she recently obtained certification as a “qualifying patient” by the Department of Consumer Protection for the palliative use of marijuana for her chemotherapy-related pain and fatigue. Mary Jane stated that she has never been “high” at work and only smokes marijuana during non-work hours and on weekends. Your client believes Mary Jane because she has never appeared impaired or under the influence on the jobsite. Notwithstanding, your client wishes to terminate Mary Jane’s employment because it is concerned that the residual effects of her marijuana use may present a safety hazard while she is operating the company’s equipment. Additionally, your client’s company has always enforced its zero-tolerance drug-free workplace policy without exception. What do you advise?
Initially, you should inform your client that the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the “ADA”) does not protect Mary Jane from termination under these circumstances. Section 12210 of the ADA excludes persons currently engaged in the “illegal use of drugs” from the definition of an “individual with a disability.” Marijuana use, even though state-sanctioned for medicinal purposes, is still considered by the Controlled Substances Act as a Schedule I drug and therefore, is illegal under federal law. See James v. City of Costa Mesa, 700 F.3d 394, 402-403 (9th Cir. 2012); Barber v. Gonzales, 2005 WL 1607189, at *1-2 (E.D. Wash. July 1, 2005). Courts confronted with ADA claims brought by medicinal marijuana users have also rejected the argument that users fall within the “supervised use by a licensed health care professional exception” in § 12110(d)(1). Accordingly, Mary Jane has no right to use medical marijuana under the ADA.
Unfortunately for your client, this is not the end of the analysis. The employer must also consider whether Mary Jane could pursue a claim against it under Connecticut’s new Palliative Use of Marijuana Law, Conn. Gen. Stat. § 21a-408p, which went into effect on January 1, 2014.
General Statutes § 21a-408p(b) prohibits non-federally funded employers from discriminating against employees or prospective employees on the basis of their status as a “qualifying patient” under the Act. Connecticut is one of only seven states (others include Arizona, Delaware, Maine, Rhode Island, Illinois and Nevada) to provide protections to medicinal marijuana users in the workplace. Section 21a-408p(b) provides:
Unless required by federal law or required to obtain federal funding:
(3) No employer may refuse to hire a person or may discharge, penalize or
threaten an employee solely on the basis of such person’s or employee’s
status as a qualifying patient. . . .
Nothing in this subdivision shall restrict an employer’s ability to prohibit the use of intoxicating substances during work hours or restrict an employer’s ability to discipline an employee for being under the influence of intoxicating substances during work hours.
In light of the new medical marijuana law, the employer faces a catch-22. While it is clear under § 21a-408p(b) that an employer may terminate or discipline an employee who reports to work impaired on account of his/her medical marijuana use, the law does not address how employers are to treat employees like Mary Jane, who use marijuana during non-work hours, but will inevitably fail routine drug tests administered pursuant to a drug-free workplace policy. If the employer terminates Mary Jane for violating its policy, it risks liability if Mary Jane proves she was not under the influence at work. On the other hand, if it does not terminate Mary Jane, the employer risks liability should Mary Jane report to work under the influence and injure herself or others. The analysis is even further complicated by the fact that a drug test may not be an accurate measure of whether the employee is “high” at work given that traces of marijuana remain in an individual’s system long after its effects disappear.
Notwithstanding the above conjecture, one thing is for certain: Connecticut’s Palliative Use of Marijuana law does seem to create a private right of action for medicinal marijuana users to pursue claims against their employers. The legislative history of the statute clearly supports that the General Assembly contemplated lawsuits pursuant to this provision. See also Savage v. Maine Pretrial Services, Inc., 58 A.3d 1138, 1143 (Me. 2013) (construing similar language in Maine’s medical marijuana law as creating a private cause of action). Assuming Connecticut courts recognize a private right of action, the types of remedies available to successful employees remain to be seen as the Act is silent on this issue.
Medicinal marijuana users appear to be a protected class, however, they have not been added to the list of protected classes under the Connecticut Fair Employment Practices Act, Conn. Gen. Stat. § 46a-60 et seq. (“CFEPA”). Therefore, it does not appear that employees who wish to bring a claim for violation of the statute need to comply with the statutory requirements associated with typical employment discrimination cases -- such as exhausting administrative remedies with the CHRO within 180-days of the adverse action. Presumably, the general three-year statute of limitations for torts would apply to such a claim.
While the ADA and CFEPA do not appear to protect medicinal marijuana users from discipline or discharge, clever plaintiffs will undoubtedly attempt to disguise their claims as disability discrimination by arguing that the adverse action was taken because of their underlying disability.
Obviously, only direction from Connecticut courts will resolve these unanswered questions. In the meantime, Connecticut employers must weigh the liability they may face if they do not make exceptions to their drug-free workplace policies for employees like Mary Jane.
Megan Y. Carannante is an associate in the Hartford office of Pullman & Comley, where as a member of the Litigation Department she practices in the areas of commercial law, labor and employment, and construction litigation. Rachel L. Ginsburg is also an associate in the Litigation Department. She has represented municipalities and school boards in labor and employment-related matters, and also has experience in matters related to Amerticans with Disabilities Act compliance. Reprinted with permission from the January 23rd issue of Connecticut Law Tribune. ©201 ALM Properties, Inc. Further duplication without permission is prohibited. All rights reserved