United States: Last Chance Agreements, Medical Marijuana, And Unemployment Benefits: Oh My

The year is 2015. An employee, employer, and local union enter into a last chance agreement that forbids the employee's use of controlled substances. If the employee violates the agreement, he may be subject to immediate termination. Subsequently, the claimant begins using medical marijuana in compliance with the terms of the Palliative Use of Marijuana Act ("PUMA") to treat his PTSD. Following a random drug test in March 2018, the employer terminates the employee for testing positive for THC, in violation of the last chance agreement.

A terminated employee cannot collect unemployment benefits when he was terminated for "willful misconduct." At the Unemployment Commission, the employer argued that the employee should not be eligible for unemployment benefits because the employee explicitly violated the last chance agreement. The Unemployment Commission disagreed, and last week, the Connecticut Appellate Court affirmed, finding that the use of medical marijuana – in spite of the last chance agreement – did not constitute willful misconduct under Conn. Gen. Stat. § 31-236. City of Waterbury v. Admin., Unemployment Compensation Act et al., No. AC 44635, 2022 WL 17243992 (Conn. App. 2022). In addressing the last chance agreement, the Court emphasized that an "agreement between an employer and an employee can reasonably prohibit certain, otherwise legal behaviors, but it cannot reasonably do so in a way that runs contrary to state law." Id. at *7. In brief, a violation of the last chance agreement could not provide a reasonable basis for termination when that violation would be protected under PUMA. Thus, the terminated employee was permitted to collect unemployment.

The reasoning in this decision is consistent with a federal case from 2017 where the District of Connecticut held that PUMA prohibits an employer from refusing to hire individuals who have medical cards based solely on a failed marijuana test. Noffsinger v. SSC Niantic Operating Co., LLC, d/b/a Bride Brook Health & Rehab. Ctr., No. 3:16-cv-01938 (D. Conn. Aug. 8, 2017). The plaintiff in that case accepted a conditional offer to work in a nursing facility contingent on a drug test. She tested positive for marijuana and the employer rescinded her offer. The Court held that the employer's decision to rescind the offer violated PUMA's anti-discrimination policy as well as the ADA.

Based on these cases, employers should know that (1) courts consider the lawful use of medical marijuana as a treatment for certain health conditions and that (2) employees are entitled to anti-discrimination protection for their use of medical marijuana under state and federal law. Simply testing positive for THC when the employee has a medical marijuana card is not sufficient grounds to terminate, even in safety-sensitive professions. There are limited exceptions to this general principle, including jobs that require a Commercial Driver's License or involve transporting students.