It would be nearly impossible to ignore the rising trend of states enacting laws to allow the use of medical marijuana to treat certain medical conditions. Delaware not only follows this trend but takes it one step farther. The Delaware Medical Marijuana Act (or the “DMMA”) authorizes the use of medical marijuana and, unlike most other states, explicitly prohibits employers from discriminating against employees for legal use of the drug.1
The state law has recently had an unexpected development. In December of 2018, a Delaware state court refused to dismiss a plaintiff’s claim for employment discrimination based on his use of medical marijuana pursuant to the DMMA. In Chance v. Kraft Heinz Foods Company, plaintiff Jeremiah Chance sought to rely on this law when he was terminated from his employment with Kraft Heinz Foods Company (“Kraft”) after testing positive for medical marijuana.2 The drug test was administered soon after a shuttle wagon that he was operating derailed from its railroad tracks. Less than six months after his termination, Chance filed suit against Kraft, accusing the company of unlawfully discriminating against him for his legal use of medical marijuana.
Many employers in marijuana-friendly states, including Kraft, typically rely on the theory that they are not required to abide by state medical marijuana laws because the use of marijuana is still illegal under federal law. Three recent cases, Noffsinger v. SSC Niantic Operating Co., LLC3 from Connecticut, Callaghan v. Darlington Fabrics Corp.4 from Rhode Island, and the Delaware case at hand show that this argument may not always hold up in court. The go-to federal law for many employers’ preemption defense is the Controlled Substances Act (the “CSA”), which classifies marijuana as a Schedule I substance and does not allow for any legal use of the drug, even for medical purposes. Despite the apparent conflict between the CSA and state laws that permit the use of medical marijuana, the preemption defense may not always be successful. For instance, in Chance Kraft sought to rely on several cases in which courts ruled against employees claiming that they were unlawfully terminated due to their medical marijuana use. However, the court noted an important distinction between those cases and Chance – the laws underlying those claims did not include express anti-discrimination provisions, unlike the provision included in the DMMA. The court ultimately decided the preemption issue in favor of Chance, noting that it is not impossible for employers to comply with both the prohibitions of the CSA and the anti-discrimination provisions of the DMMA. After all, employers are not required to use or distribute marijuana under the DMMA but are simply required to refrain from taking action against employees for legal use of the drug. Therefore, there is no direct conflict with the CSA’s prohibitions.5
This hit to Kraft’s defense does not mean that Chance or any other medical marijuana user will necessarily prevail in their employment discrimination case after being terminated for using medical marijuana. It simply means that employers who operate in Delaware, Connecticut, and Rhode Island may have to work a little harder to defend their cases instead of just relying on the CSA to preempt their employees’ claims. Employers will likely have to take additional steps to show that they took action against the employees for a non-discriminatory reason, such as for being intoxicated while at work.6 For Kraft, that defense will likely include demonstrating that Chance’s marijuana-induced impairment caused the shuttle wagon accident.
Employers in all states should stay up to date on the changes in their state laws surrounding medical marijuana in order to implement work-place policies that may help them avoid claims of employment discrimination. Though these three states are the only ones with standing court rulings against federal preemption, several other states do include express protections for employees who participate in state medical marijuana programs, so employers in those states should take special care to monitor for developments surrounding their laws.
1The law states that “an employer may not discriminate against a person in hiring, termination, or any term of the condition of employment … if the discrimination is based upon either of the following: a. The person’s status as a cardholder; or b. A registered qualifying patient’s positive drug test for marijuana … unless the patient used, possessed, or was impaired by marijuana on the premises of the place of employment or during the hours of employment.” 16 Del. C. § 4901A et seq.
2Chance v. Kraft Heinz Foods Co., C.A. No. K18C-01-056 NEP (Del. Super. Ct. Dec. 17, 2018).
3Noffsinger v. SSC Niantic Operating Co., LLC, 273 F. Supp. 3d 326, 333 (D. Conn. 2017).
4Callaghan v. Darlington Fabric Corp., 2017 WL 232118, (R.I. Super. 2017).
5“A federal statute may preempt a state law in several ways, including where state law is an obstacle to the objectives of Congress (‘obstacle preemption’) or where simultaneous compliance with both federal and state law is impossible (‘impossibility preemption’).” Id. at f.n. 11.
6 Read about permissible actions against medical marijuana users for drug use or impairment at work here in our earlier blog discussing Noffsinger II.
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