United States: Connecticut Court's First Decision On Medical Marijuana Use Discrimination Is A Buzzkill For Employers

Last Updated: September 4 2017
Article by Ashley Totorica

Connecticut law allows the use of marijuana by qualified patients for medicinal purposes and expressly prohibits employers from taking adverse employment actions because of an individual's status as a qualified medical marijuana user. Federal law classifies marijuana as an illegal controlled substance and categorically prohibits the use of marijuana for any purpose. For employers in Connecticut with pre-hire drug testing requirements and policies on illegal drug use, this conflict has led to a cloudy haze as to what actions may be taken if a registered medical marijuana user fails an employment-related drug test.

In the first case to squarely address this conundrum in Connecticut, Noffsinger v. SSC Niantic Operating Company, LLC, No. 3:16-cv-01938 (August 8, 2017), a federal district court judge found that there is no conflict between federal and Connecticut marijuana regulation and held that federal law does not preempt Connecticut law. Accordingly, a cause of action may be maintained under Connecticut's medical marijuana law for firing or refusing to hire a user of medical marijuana, even where the individual has failed a drug test.

Regulation of Medical Marijuana in Connecticut

In 2012, the Connecticut legislature passed the Palliative Use of Marijuana Act (PUMA). As with similar statutes in other states, PUMA permits the use of medical marijuana by "qualifying patients" with certain debilitating medical conditions, including post-traumatic stress disorder (PTSD). One significant distinction, however, is that PUMA is one of the few state statutes that contains an express non-discrimination provision, which protects employees from adverse employment actions taken based upon the employee's status as a "qualifying patient" of medical marijuana. Specifically, PUMA states that "unless required by federal law or required to obtain federal funding":

No employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person's or employee's status as a qualifying patient. . . . Nothing in this subdivision shall restrict an employer's ability to prohibit the use of intoxicating substances during work hours or restrict an employer's ability to discipline an employee for being under the influence of intoxicating substances during work hours.

While the language of the act is fairly clear, what is not so clear is how an employer can abide by its dictates on non-discrimination against users of medical marijuana while also consistently applying a pre-employment drug-testing policy and complying with federal law. In a case of first impression, a district court judge in Connecticut addressed the question of whether it was possible for an employer to do so, or whether federal law precluded enforcement of the act.

Noffsinger v. SSC Niantic

In Noffsinger, a Connecticut nursing home rescinded a job offer to a prospective employee, Katelin Noffsinger, after she tested positive for marijuana in a routine pre-employment drug screening. Noffsigner had provided the nursing home with her registration demonstrating that she was legally prescribed marijuana by her physician to treat PTSD. Noffsinger sued, alleging that the nursing home violated the non-discrimination protections of PUMA by failing to hire her based upon her status as a "qualifying patient" of medical marijuana.

The nursing home moved to dismiss the suit, arguing that the anti-discrimination provision of PUMA was preempted from enforcement by the federal Controlled Substances Act (CSA), the Americans with Disabilities Act (ADA), and the Federal Food, Drug, and Cosmetic Act (FFDCA). In essence, it argued that because PUMA acted as an obstacle to the enforcement of these federal laws that, inter alia, prohibit marijuana use and deny protections to users of illegal drugs, PUMA was invalid due to the Supremacy Clause of the United State Constitution.

In denying the nursing home's motion to dismiss the PUMA cause of action, the court answered some open questions for employers in Connecticut and provided some guidance for employers in other states with similarly-worded statutes.

Private Right of Action

One of those questions was whether an individual could even bring a private lawsuit for an employer's violation of PUMA. The act contains no express language that provides for a private right of action by an aggrieved applicant or employee. The court, however, found that the act impliedly provided for individuals to bring claims under the act based upon legislative testimony indicating that PUMA would provide protections for employees that would be enforceable in the courts. While in no way binding upon other courts, the finding of an implied right of action could have a persuasive effect in other states with similarly worded statutes, including New York, Maine, and Minnesota.

No Preemption

The court held that federal law does not preempt PUMA's anti-discrimination employment provision. In regard to the CSA, which makes it a federal crime to use marijuana, the court found that the CSA does not regulate the employment relationship (by making it illegal to employ a marijuana user, for example), so the anti-discrimination provision of PUMA does not preempt or conflict with the CSA. For similar reasons, the court found that the FFDCA, which does not include medical marijuana as an approved drug by the FDA, does not regulate employment.

The court also found that the ADA similarly did not preclude PUMA's enforcement. The nursing home argued that because the ADA allows employers to hold all employees to equal qualification standards, the ability to successfully pass a drug test was a qualification standard applicable to all employees, and PUMA conflicted with the ADA's purpose. The court was unconvinced, reasoning that "qualification standards" must be job-performance/behavior-related, and there was no claim that Noffsinger's marijuana use would occur in the workplace or adversely affect her job performance.

Federal Law Carve Out and Equal Protection Clause Not Applicable

The court dispensed with the nursing home's last two defenses against the enforcement of PUMA, which were based on the statutory carve-out language and the equal protection clause, finding them "absurd" and "frivolous," respectively. The court found that the nursing home could not utilize the carve-out language of PUMA, which states that employers are prohibited from refusing to hire a qualifying patient "unless required by federal law of required by federal funding." While the nursing facility is subject to federal regulation requiring compliance with federal law, the court found that hiring a medical marijuana user, in and of itself, would not violate any law.

The court also rejected the argument that PUMA violates the equal protection clause by treating one class of employees (medical marijuana users) different than other similarly situated employees (recreational marijuana users), finding that the legislature could have a rational basis for distinguishing between people using marijuana for medicinal purposes, as compared to those "who use marijuana at their whim to get high."

Key Takeaways

Employers in Connecticut and elsewhere may want to review their drug policies in light of this decision and to address the quickly-changing landscape of medical marijuana in the workplace—especially relating to pre-employment drug testing. Noffsinger takes aim at blanket policies by employers that deny or terminate employment for a positive drug test for marijuana. This case may be of particular interest to employers in other states with laws that, similar to Connecticut, contain express anti-discrimination protections for medical marijuana users, namely Arizona, Delaware, Illinois, Maine, Nevada, New York, Minnesota, and Rhode Island.

Noffsinger's key holdings are the implication of a private right of action and that federal law does not preempt a discrimination claim by an employee under a state's medical marijuana law. While the decision addresses only the language of PUMA, other jurisdictions are likely to follow the Connecticut court's lead. Indeed, this is the second employee-friendly decision in this past month to affirm job protections for medical marijuana users. The Massachusetts Supreme Judicial Court, on July 17, 2017, found that an employer has an obligation to accommodate medical marijuana users under Massachusetts's disability discrimination laws. As more states legalize marijuana, it is more important than ever for employers to see through the smoke and to stay up to date on the developing legal landscape.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions