As many Human Resources professionals may recall, last year we saw the first court decision regarding Connecticut’s Palliative Use of Marijuana Act (“PUMA”). The District Court of Connecticut declined to dismiss the case of a plaintiff seeking redress under PUMA, holding that PUMA creates a private cause of action for employment discrimination and, further, that PUMA’s anti-discrimination provision is not preempted by federal law.  With that ruling, the case continued on in litigation and, on September 5, 2018, the same Court issued another decision in the case, providing additional insight into this ever-evolving area of employment law.

For those who do not remember the facts, a brief refresher of the background of the case:  The defendant-employer offered the plaintiff, Katelin Noffsinger, a job contingent on her passing a drug test.  The plaintiff voluntarily informed the defendant that she was qualified under PUMA to use medical marijuana to treat her post-traumatic stress disorder (PTSD).  Nonetheless, the defendant  required her to take the drug test and, not surprisingly, Ms. Noffsinger failed her drug test.  Based on the failed drug test, the defendant rescinded the job offer.  The Court denied the defendant’s motion to dismiss and the litigation continued.  

After completing discovery, the parties both filed motions for summary judgment…and the Court granted summary judgment in favor of Ms. Noffsinger on her employment discrimination claim under PUMA.  The parties agreed the defendant offered Ms. Noffsinger a job and that the defendant rescinded that offer because of a positive drug test result which stemmed from Ms. Noffsinger’s use of medical marijuana pursuant to her qualifying status under PUMA.

The Court rejected the defendant’s position that as a federal contractor, the Drug-Free Workplace Act (“DFWA”) barred it from hiring Ms. Noffsinger. The court found that the employer was not required by federal law to impose a zero-tolerance drug policy, but simply chose to do so.  The court also found no federal law barring an employer from hiring Ms. Noffsinger on account of her medicinal use of marijuana outside of work, rejecting the defendant’s argument that hiring Ms. Noffsinger would violate the Federal False Claims Act.  Lastly, the court rejected the defendant’s argument that PUMA prohibits discrimination only on the basis of one’s status as an approved medical marijuana patient, but not on account of one’s use of medical marijuana.

Ultimately, and importantly, although the court granted Ms. Noffsigner summary judgment, the court rejected her claim for attorney’s fees and punitive damages.  The court reasoned that PUMA does not expressly provide for such damages, and declined to imply punitive damages as a remedy.

Given this decision, employers should understand that PUMA protects a qualifying patient’s use of medical marijuana outside working hours in the absence of being under the influence during working hours.  As such, as with any situation, employers should focus solely on the employee’s work performance and ability to successfully undertake the job at hand.  With PUMA in its infancy and few court decisions to provide guidance, employers should exercise caution when dealing with qualified patients under PUMA and consult an employment attorney prior to taking any adverse action.  

Our team of labor and employment attorneys can assist employers in complying with the complicated landscape of background check laws and ensuring compliance with all applicable labor and employment laws.