Case

United States District Court, D. Connecticut. Katelin NOFFSINGER, Plaintiff, v. SSC NIANTIC OPERATING COMPANY LLC, d/b/a Bride Brook Nursing & Rehabilitation Center, Defendant. Noffsinger v. SSC Niantic Operating Company LLC 273 F.Supp.3d 326 (2017) U.S. District Court, D. Connecticut

Issues

• Does the federal Controlled Substances Act (CSA) 21 U.S.C. §801-971, which categorically prohibits the use of marijuana even for medical purposes preempts the provisions in Connecticut’s Palliative Use of Marijuana Act (PUMA) Conn. Gen. Stat. 21a–408 et seq., that prohibits employers from discriminating i.e. firing or refusing to hire, against authorized persons who use marijuana for medical purposes. Further, does the permissive Connecticut state law conflict with the federal law which makes it a federal crime to use, possess, or distribute marijuana, when it prohibits employers from discriminating against authorized persons who use medicinal marijuana outside of the workplace.
• Does the federal Americans with Disabilities Act, 42 U.S.C. 12101 et seq. (ADA), which creates an illicit drug- use exception to the protection of employees from discrimination, preempts the provisions of the PUMA.
• Does the Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. 301 et seq., which does not approve or permit the usage, dispensing and licensing of medical marijuana preempts the provisions of PUMA permitting the same.
• Does the §21a–408p(b)(3) of PUMA impliedly authorize a private right of action. 

Summary:

The Plaintiff (employee) was diagnosed with post-traumatic stress disorder and her doctors recommended medical marijuana to treat her PTSD. She registered with the state Department of Consumer Protection as a qualifying patient under PUMA and received her registration certificate. Subsequently, when the Plaintiff began her prescribed marijuana medication (Marinol), she was employed as a recreation therapist at Touchpoints. In 2016, the Plaintiff interviewed for a position as a director of recreational therapy with the Defendant (employer) and on July 20, 2016, was instructed to give notice to her previous employers. (Touchpoints) so she could begin working with the Defendant soon after. On July 25, 2016, the Plaintiff met with the administrator of Bride Brook (Defendant) for a routine pre-employment drug screen. The Plaintiff disclosed that she was taking prescription marijuana as a “qualifying patient” under PUMA to treat her PTSD, explaining that she took her medication only in the evening before bed and therefore would not be impaired during the workday and offered to provide any additional medical documentation. At the same meeting, the Plaintiff provided the defendant with a urine sample to be used as part of the pre-employment drug test. A day before her employment start date at Bride Brook, the Plaintiff was informed by the Defendant that her job offer was rescinded because she had tested positive for cannabis. The Plaintiff’s (employee) primary contention was that the Defendant (employer) violated the antidiscrimination provision of PUMA that prohibits an employer from discriminating against authorized persons who use medical marijuana. The Defendant argued that the Federal CSA, ADA and FDCA all preempt the provisions of the PUMA under the theory of obstacle preemption and there was no obligation on the Defendant as an employer to abide by the provisions of PUMA . The Defendants argument was that the PUMA in toto conflicted with the basic objectives of the CSA because it allows the very conduct that the CSA prohibits. The Defendant also moved to dismiss the Plaintiffs claim on three grounds, including that the PUMA did not explicitly stipulate a private right of action. The Defendant further argued that it was exempt under   §21a– 408p(b) of PUMA as it was subject to federal nursing home regulations and that by hiring the plaintiff the Defendant would be in violation of such federal regulations. Finally, the Defendant also argued that §21a–408p(b)(3) violated the Equal Protection Clause.

Conclusion

The Court concluded that Connecticut’s PUMA statute is not preempted by any federal laws since the Defendant was unable to prove that the relevant provision of the state law dealing with anti-employment discrimination created “actual conflict” with the overriding federal purpose and objective. The Court held that PUMA’s §21a–408p(b)(3) regulated the employment relationship and given that the CSA nowhere prohibits the hiring of applicants who may engage in illegal drug use, there was no tension sufficient to conclude a “sharp” conflict required for CSA to preempt PUMA. The Court further held that since ADA does not preempt the provisions of the PUMA, noting that the ADA is an anti-discrimination statute that exempts the use of illegal drug use from its protective scope but that does not preclude States from regulating employers who discriminate against employees who legally engage in the use of medical marijuana in compliance with state laws. The Court also held that since it was considering only the validity of the PUMA’s anti-discrimination-in employment provision and the FDCA does not seek to regulate employment there was no conflict that causes the FDCA to preempt PUMA. Applying the factors from the test in Napoletano, the Court also concluded that a private cause of action was not inconsistent with the underlying purpose of the legislative scheme and §21a–408p(b)(3) contains an implied private right of action.

Takeaways

When specifically considering provisions of the state laws that deal with anti-employment discrimination, the Court was careful not take an overboard interpretation of federal obstacle preemption and concluded that the CSA, ADA and FDCA do not directly conflict with the state’s anti discrimination provision in an employment context. Further, in the absence of any other enforcement mechanism in the state law, the Court was in favor of concluding the existence of an implied private right of action.