By Original uncropped image from Laurie Avocado (Cropped version of [1]) [CC BY 2.0 ], via Wikimedia Commons
Last Summer, I blogged here about how a Connecticut federal court concluded that the state’s compassionate use law, the Connecticut Palliative Use of Marijuana Act (PUMA), allows medical marijuana users to sue if they are fired (or not hired) because they use medical marijuana.
What I didn’t realize at the time was that the employer was a federal contractor.
(That was because the court was deciding a motion to dismiss, which focuses solely on the plaintiff’s allegations in her complaint.)
Fast forward to 2018, and the federal contractor asked the same court to take into account that it is a federal contractor. Why is this important? Well, consider this:
- PUMA allows for an exception if discrimination is “required by federal law or required to obtain federal funding,” and
- Under the Drug-Free Workplace Act of 1988Â (DFWA), some Federal contractors and all Federal grantees must provide drug-free workplaces as a precondition of receiving a contract or grant from a Federal agency.
Sounds good to me. Except, last week (opinion here), the court side-eyed the you-know-what out of that argument:
The DFWA does not require drug testing. Nor does the DFWA prohibit federal contractors from employing someone who uses illegal drugs outside of the workplace, much less an employee who uses medical marijuana outside the workplace in accordance with a program approved by state law.
Drug testing policy? Whatever…
That defendant has chosen to utilize a zero tolerance drug testing policy in order to maintain a drug free work environment does not mean that this policy was actually “required by federal law or required to obtain federal funding.” Accordingly, I reject defendant’s argument that it would violate the DFWA for it to hire someone like plaintiff who uses medical marijuana during off-hours.
Well, maybe employing a medical marijuana user violates the False Claims Act. Maybe.
Defendant further argues that the federal False Claims Act bars it from hiring plaintiff, allegedly because its employment of someone who uses medical marijuana in violation of federal law would amount to a defrauding of the federal government. But because there is no federal law that bars defendant from hiring plaintiff on account of her medicinal use of marijuana outside work hours, it would not constitute fraud on the federal government for defendant to hire plaintiff.
How about a more nuanced argument? Like, what if PUMA prohibits discrimination only on the basis of one’s status as an approved medical marijuana patient but not on account of one’s use of medical marijuana?
Bueller. Bueller.
[T]he language and purpose of the statute make clear that it protects employees from discrimination based on their use of medical marijuana pursuant to their qualifying status under PUMA. Under defendant’s restrictive interpretation of the statute, employers would be free to fire status-qualifying patients based on their actual use of medical marijuana—the very purpose for which a patient has sought and obtained a qualifying status. That makes no sense and would render the statute’s protection against PUMA-based discrimination a nullity, because there would be no reason for a patient to seek PUMA status if not to use medical marijuana as permitted under PUMA.
This isn’t going to end well, is it?
No, the plaintiff prevailed on her PUMA claim.
But, there is a silver lining. That is, the court ruled that PUMA does not permit recovery of attorney’s fees. Thus, there isn’t much incentive for attorneys to handle PUMA-only cases.
Plus, this decision is limited to Connecticut law. Elsewhere, under your state’s law, your mileage may vary.