Justin E. Theriault

Jackson Lewis P.C. | Hartford

Justin.Theriault@jacksonlewis.com | 860-331-2588

Medical Marijuana

Recent Caselaw Changes the Landscape for Employers:

• Noffsinger v. SSC Niantic Operating Co., LLC, Docket No. 3:16-cv-

01938 (D. Conn., Aug. 8, 2017)

• Conditional offer of employment was rescinded when applicant test

positive for marijuana, despite the fact she had disclosed medical

usage, legal under CT law.

• Applicant claimed violation of anti-discrimination provision, “no

employer may refuse to hire a person . . . solely on the basis of such

person’s status as a qualifying patient.”

• Court rejected the defendant’s arguments:

• CT law is not preempted by federal law including the ADA

• There is an implied private right of action

• The law does not violate the Equal Protection Clause

Caselaw Cont.

• An employee fired after she tested positive for marijuana on a testadministered in the hiring process should be able to proceed with her“handicap discrimination” claim under Massachusetts’ anti-discriminationstatute, the Massachusetts Supreme Judicial Court has ruled. Barbuto v.Advantage Sales & Marketing, LLC, SJC -12226 (July 17, 2017). The Court’sruling partially overturned the lower court’s decision to grant theemployer’s motion to dismiss.

• Employers cannot refuse to hire a medical marijuana cardholder, even ifthe individual admittedly would not pass the employer’s pre-employmentdrug test required of all applicants, a Rhode Island state court has heldunder the state medical marijuana law. Callaghan v. Darlington FabricsCorp., et al., No. PC-2014-5680 (R.I. Super. Ct., May 23, 2017). The courtgranted summary judgment to the plaintiff-applicant.

Hypotheticals

Scenario 1: Upon learning that he would have to submit to a drug test if hired, MartyMarijuana discloses during his interview that he won’t pass because he is amedical marijuana cardholder.

Scenario 2: Current employee Mary Jane reports to work and seems “off”. Managementnotices she is slow to respond, not her usual self, has bloodshot eyes andkeeps falling asleep at her desk covered in Cheetos. Management notifiesHR and asks Mary Jane to submit to a drug test. Mary Jane tests positive formarijuana, but presents a legitimate medicinal marijuana certificate.

Scenario 3: Current employee Harry Hemp is increasingly showing up to work late andhis performance is slipping. You have written him up twice and, inaccordance with the Company’s attendance policy, the next step istermination. In the context performance management discussions, HarryHemp discloses he has a substance abuse problem, including marijuana, andthat is why his performance has been so bad lately.

©2017 Jackson Lewis P.C. 6

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