A federal court in Connecticut issued a land-mark order on September 5, 2018. The order granted a motion for Summary Judgment filed by the plaintiff in Noffsinger v. SSC Niantic Operating Company, LLC, d/b/a Bride Brook Nursing & Rehab Center (Bride Brook).1 The court’s order declared that Bride Brook violated Connecticut state law by discriminating against the plaintiff because of her legal use of medical marijuana when it rescinded a job offer because of her positive pre-employment drug test result.
Plaintiff Noffsinger’s success comes as a shock, as courts rarely grant summary judgment in favor of a plaintiff.2 Summary judgment typically means that the facts in a case are so clear that the claim can be decided by the judge in favor of one party without a jury trial. Here, the court decided that no jury could reasonably find in favor of Bride Brook and that Bride Brook violated Connecticut’s Palliative Use of Marijuana Act (PUMA) simply by refusing to hire her after her marijuana-positive drug test result.3 Because Bride Brook essentially admitted to the violation by conceding the fact that the drug test was the only reason Noffsinger was not hired, the only question left to be answered at trial is the amount of compensatory damages that the company must pay to her.
Bride Brook attempted to defend against Noffsinger’s claim by arguing that PUMA only prohibits discrimination against an employee on the basis of her status as an approved medical marijuana patient, but not on the basis of her use of the drug. However, the court rejected Bride Brook’s theory, stating that it “makes no sense” to interpret PUMA this way, as the ability to use medical marijuana is the sole purpose of obtaining authorization under PUMA.
The court’s decision effectively prohibits Connecticut employers from taking adverse action against a PUMA-registered applicant or employee for a positive drug test alone. While the court pointed out that PUMA does allow employers to take action against employees who are intoxicated at work, this distinction may not provide them with much clarity. Unlike alcohol, where the correlation between blood alcohol content and impairment is so strong that we can treat the level alcohol content in the blood as a proxy for impairment, there is insufficient scientific evidence to establish a correlation between the level of delta-9-tetrahydrocannabinol (THC) in one’s system and impairment.4 Instead, employers may have to look to other methods to show that an applicant or employee is under the influence of marijuana. These methods typically involve evaluating physical signs of impairment by testing cognitive skills and psychomotor abilities, but they are highly subjective and leave employers without clear standards for evaluating intoxication.
While this case may only immediately concern Connecticut employers, the ruling will likely have long-term implications for others. Though Noffsinger’s victory only represents one federal judge’s opinion under one state’s law, this order should serve as a reminder to employers that legal guidelines are constantly evolving, and that they must stay up-to-date on issues affecting their business and consult with their legal counsel to understand the application of marijuana-related laws governing their jurisdictions.
1 Noffsinger v. SSC Niantic Operating Co., LLC, d/b/a Bride Brook Nursing & Rehab. Ctr., No. 3:16-CV-01938 (JAM), 2018 WL 4224075, at *1 (D. Conn. Sept. 5, 2018).
2 Plaintiffs are granted motions for summary judgment at a disproportionately lower rate than defendants. See, e.g., Bronsteen, Against Summary Judgment, GEORGE WASHINGTON L. REVIEW at 523-524, n.10 (citing an example study finding that in 2000, one federal court granted 293 motions for summary judgment – 206 in favor of defendants and only 87 for plaintiffs).
3 See, Conn. Gen. Stat. § 21a-408p(b)(3) et seq.
4 See, Marijuana-Impaired Driving, A Report to Congress, U.S. Department of Transportation, July 2017, at https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/812440-marijuana-impaired-driving-report-to-congress.pdf.
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