Employers in California and elsewhere are closely watching case law that slowly erodes limits to employer liability for actions regarding the use of Medical Marijuana outside the workplace. A recent decision in a federal trial court in Connecticut is one of the cases that are making employers nervous about their policies.

In the case of Noffsinger v. SSC Niantic Operating, No. 3:16-cv-01938 (D. Conn.), a federal judge ruled that refusing to hire a medical marijuana user because she tested positive on a pre-employment drug test violates Connecticut’s medical marijuana law as it granted summary judgment to the job applicant on her employment discrimination claim.

Plaintiff Katelin Noffsinger was diagnosed with post-traumatic stress disorder (PTSD) in 2012 after being in a car accident. Her caregiver recommended treating her PTSD with medical marijuana, which she began using in 2015. In accordance with Connecticut Palliative Use of Marijuana Act (PUMA), plaintiff registered with the Department of Consumer Protection in November 2015 as a qualifying patient for the use of medical marijuana.

Noffsinger accepted a job offer from defendant SSC Niantic Operating Company, LLC d/b/a Bride Brook Health & Rehabilitation Center. But the offer was contingent on drug testing, and plaintiff told defendant that she was qualified under PUMA to use marijuana for medical purposes to treat her post-traumatic stress disorder. After her drug test came back positive for THC consistent with the use of marijuana, defendant rescinded its job offer.

She filed suit against the employer in federal court. After the parties conducted discovery they cross-moved for summary judgment.

Bride Brook argued that its refusal to hire Noffsinger is allowed by an exception to PUMA’s anti-discrimination provision (when “required by federal law or required to obtain federal funding”). It argued that the federal Drug-Free Workplace Act (DFWA) barred it from hiring Noffsinger because that law prohibits federal contractors from allowing employees to use illegal drugs. Marijuana is illegal under federal law.

The court rejected Bride Brook’s argument, noting that the DFWA does not require drug testing and does not regulate employees who use illegal drugs outside of work while off-duty.

Similarly, the court rejected Bride Brook’s argument that hiring Noffsinger would violate the False Claims Act. It held that hiring an employee who uses medical marijuana outside of work while off-duty would not defraud the federal government.

Bride Brook also argued that it did not violate PUMA because it did not discriminate against Noffsinger based on her status as a medical marijuana user; rather, it had relied on the positive drug test result. The court dismissed this argument, concluding that acceptance would render a medical marijuana user’s protection under the statute a nullity.

While the court held that the employer had engaged in employment discrimination, it declined to award Noffsinger attorney fees or punitive damages because those types of damages are not expressly recoverable under PUMA.

Additionally, the court dismissed Noffsinger’s claim for negligent infliction of emotional distress, because the employer did not engage in “unreasonable conduct” and Noffsinger chose to give notice to her prior employer that she was resigning before she had advised Bride Brook of her medical marijuana use.

Although this is a development at the trial court level in a jurisdiction outside of California which is not binding precedent here, nonetheless employment law attorneys who have been watching these cases evolve in Connecticut and elsewhere suggest that employers should consider the marijuana laws affecting their workplaces now, before an issue arises, and adjust their policies as necessary.