Last August, we blogged about a case of first impression in Connecticut where a federal court judge found that Connecticut’s Palliative Use of Marijuana Act (“PUMA”) creates a private cause of action for employment discrimination and that PUMA’s anti-discrimination provision is not preempted by federal law. See Noffsinger v. SSC Niantic Operating Co. LLC, 273 F. Supp. 3d 326, 340 (D. Conn. 2017). On September 5, the court issued another decision in this case, offering further insight into this evolving area of employment litigation.
Court Finds in Favor of Plaintiff on Employment Discrimination Claim
To briefly recap the facts of the case, the defendant offered the plaintiff, Katelin Noffsinger, a job contingent on her passing a drug test. Ms. Noffsinger told the defendant she was qualified under PUMA to use medical marijuana to treat her post-traumatic stress disorder (PTSD). Predictably, Ms. Noffsinger failed her drug test, and the defendant rescinded the job offer.
The court granted summary judgment in favor of Ms. Noffsinger on her employment discrimination claim under PUMA. The parties did not dispute that Ms. Noffsinger was offered a job by the defendant-employer and that the offer was ultimately rescinded because of a positive drug test result. Also undisputed was the fact that the positive drug test stemmed from Ms. Noffsinger’s use of medical marijuana pursuant to her qualifying status under PUMA to treat her PTSD.
The employer’s arguments failed to persuade the court that Ms. Noffsinger’s claim should be dismissed. For example, the court rejected the employer’s position that as a federal contractor, the Drug-Free Workplace Act (“DFWA”) barred it from hiring Ms. Noffsinger, finding that the employer was not required by federal law to impose a zero-tolerance drug policy, but simply chose to do so. Accordingly, the court rejected the employer’s argument that hiring someone like Ms. Noffsinger who uses medical marijuana during off-hours would violate the DFWA.
In addition, because the court found that there is no federal law barring an employer from hiring Ms. Noffsinger on account of her medicinal use of marijuana outside of work, the court summarily rejected the employer’s argument that hiring her would violate the Federal False Claims Act.
Finally, the court rejected the employer’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 in accordance with a PUMA program. The court found that this argument was illogical because the very purpose of seeking PUMA qualified status is to use medical marijuana as permitted under PUMA.
Attorney’s Fees and Punitive Damages Not Available Under PUMA
The court’s decision resolves an important question concerning the scope of damages available for a violation of PUMA’s anti-discrimination provision. Although the court found in Ms. Noffsinger’s favor on her employment discrimination claim under PUMA, it 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.
Court Finds in Employer’s Favor on Negligent Infliction of Emotional Distress Claim
In a Pyrrhic victory for the employer, the court dismissed Ms. Noffsinger’s negligent infliction of emotional distress (“NIED”) claim. According to Ms. Noffsinger, the defendant’s eight-day delay in informing her that it was rescinding the job offer constituted NIED. The court rejected this argument, noting that regardless of the defendant’s delay in informing her that it was rescinding the job offer, Ms. Noffsinger had already resigned from her prior job five days before ever informing the defendant of her medical marijuana status. The court’s ruling is significant because it implies that under different circumstances, a plaintiff could prove negligent infliction of emotional distress due to an adverse employment action based on an individual’s status as an approved medical marijuana patient.
In siding with Ms. Noffsinger, the court affirmed that PUMA protects a qualifying patient’s use of medical marijuana outside working hours and in the absence of any influence during working hours. In other words, employers should not rely solely on federal law or their status as a federal contractor when making employment decisions with regard to applicants and employees who use medical marijuana. This is an evolving and uncertain area of law, and employers should exercise caution when dealing with qualified patients under PUMA. We will continue to monitor developments in this area of the law, but for now, employers should be mindful of PUMA and its impact on the workplace and consult with employment counsel as necessary.