Global Ganja Report

After years of upholding employee firings for use of cannabis even under state medical marijuana programs, the courts are finally starting to turn around on the question.

One of the ways state medical marijuana programs have failed to fully extend protection to medicinal users is in failure to defend against employment discrimination. This is now beginning to change, thanks to a few recent court decisions in favor of patients and employees.

The case of Connecticut health care worker Katelin Noffsinger was profiled by the Associated Press on Oct. 2. At her job interview with the Bride Brook Health & Rehabilitation Center in Niantic, where she had applied for the position of recreation therapy director, Noffsinger openly stated that she used a medical marijuana product to control the PTSD she has suffered from since a car crash—and emphasized that she only took it before bed at night, so she would not be under its influence on the job. Nonetheless, when a drug test came back positive for THC, the nursing home withdrew the job offer.

Noffsinger went to court in 2016, and last month District Judge Jeffrey Meyer in New Haven ruled that the nursing home had violated an anti-discrimination provision of Connecticut’s medical marijuana law..

The case isn't over, as the judge denied Noffsinger's request for punitive damages. The next move is a trial to determine whether she should receive compensatory damages for lost wages from not getting the job.

Further details are provided by the Jackson Lewis law blog. Noffsinger was registered as a "qualifying patient" under Connecticut Palliative Use of Marijuana Act (PUMA). She was, however, actually using Marinol—synthetic THC in capsule form. And Marinol is an FDA-approved prescription drug.

As the Thompson Coburn medical blog notes, Marinol is in Schedule III—the DEA classification for drugs with legitimate medical applications and a low potential for abuse. This despite the fact that the DEA officially clarified in December 2016  that all cannabis extracts remain in the highly restrictive Schedule I—the same classification as the cannabis plant itself. The ostensible justification for this absurd contradiction is that Marinol contains a synthetic form of THC, not an actual extract—despite the fact that it behaves precisely the same way in the human body.

In any case, Marinol's legal status makes the denial of the position to Noffsinger all the more outrageous.

Similar victories in Massachusetts, Rhode Island
As the Associated Press account notes, the Connecticut decision was the first ruling of its kind in a federal case. But it followed similar recent rulings against employers by state courts in Massachusetts and Rhode Island. This begins to reverse an earlier trend, which saw the high courts in California, Colorado, Oregon and Washington rule in favor of employers in discrimination suits over medical marijuana use.

"This decision reflects the rapidly changing cultural and legal status of cannabis, and affirms that employers should not be able to discriminate against those who use marijuana responsibly while off the job, in compliance with the laws of their state," Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws (NORML), said to AP.

By the count of the National Conference of State Legislatures, 31 states, plus the District of Columbia, Puerto Rico and Guam, now have medical marijuana programs, while 15 others have more limited programs allowing use of low-THC (but high-CBD) preparations for medical use. Only nine states, including Connecticut, have explicitly barred employment discrimination against medical marijuana users.

In June 2017, the Massachusetts Supreme Judicial Court ruled that a sales and marketing company wrongly fired employee Christine Barbuto after she tested positive for marijuana, which she used under the state's medical program to treat her Crohn's disease. And in May 2017, the Rhode Island Supreme Court found that a college student was wrongly denied an internship at a fabric company after she acknowledged she could not pass a drug test because of her medical marijuana use. The denial was deemed to violate the state's disability discrimination act, as well as provisions of its medical marijuana law.

The American Bar Association called the Connecticut, Massachusetts and Rhode Island cases "an emerging trend in employment litigation" and advised employers to take state medical marijuana laws into consideration when crafting their drug use and testing policies.

All this must surely be viewed as vindication by Brandon Coats, a Colorado quadriplegic who was fired by a satellite TV company in 2010 after he failed a drug test. In June 2015, the Colorado Supreme Court unanimously upheld a lower court decision that the company's "zero tolerance" drug policies were not pre-empted by Colorado's medical marijuana law. 

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