A lot has been made of the recent district court decision on legal job protections for qualifying medical marijuana patients.

But the decision has another piece that has been overlooked and which may cause employers some heartburn as well.

The “Negligent Infliction of Emotional Distress” cause of action has been on life support for the last decade or so as courts have limited its applicability for claims arising in the workplace.

Indeed, the Connecticut Supreme Court held back in 2002 that a claim for negligent infliction of emotional distress cannot arise from conduct occurring in an ongoing employment relationship, as distinguished from conduct occurring in the termination of employment.

But what should happen to claims by job applicants that allege that rescinded job offers have caused emotional distress?

The recent decision by Judge Meyer allows that claim to continue and denied an employer’s motion to dismiss.

It found that the allegation of the complaint — and specifically, that the employer knew that plaintiff suffered from post-traumatic stress disorder (PTSD) and then waited to rescind her job offer until one day before she was scheduled to begin work (and after she had already left her prior job), was sufficient to establish a possible claim. The allegations of the complaint were that such actions caused plaintiff to experience severe emotional distress, including anxiety, sleeplessness, and loss of appetite.

The Court, in its ruling, analyzed the decisions in Connecticut in the last 15 years and found that “Connecticut courts have not squarely decided whether a rescinded job offer could serve as the basis for a negligent infliction of emotional distress claim”:

The practical,workplace-related reasons … for precluding a claim for negligent infliction of emotional distress on the basis of events occurring in an ongoing employment relationship do not apply in the context of an employer who rescinds a job offer before the prospective employee can begin work. … Because the withdrawal of a job offer is more akin to termination than to conduct occurring in an ongoing employment relationship, it seems consistent … that a claim for negligent infliction of emotional distress could arise from the withdrawal of a job offer.

Although the decision itself shouldn’t necessarily change how employers manage their job offers (or withdrawals of job offers), it is a reminder to treat job applicants with some care.  If an employer does need to withdraw the job offer, it should be done in a way to minimize the harm to the applicant.

The worry, of course, with the court’s decision is that there are going to be cases that allege that the mere withdrawal of the job offer is sufficient to state a claim; the court’s decision doesn’t go that far and it seems that the plaintiff’s allegation of PTSD was a significant factor in allowing the claim to proceed.

But employers who face such claims in the lawsuit should be sure to review the circumstances to see where on the spectrum the particular claim falls.

Labor Day has come and gone. Summer is over.  Can we all stop listening to Despacito now. (Please?)

But it’s time to look at a decision that came out during the dog days of summer that might have been overlooked.  A recent federal district court case (Noffsinger v. SSN Niantic Operating Co. LLC, download here) has answered the question of whether Connecticut’s medical marijuana laws were preempted by federal law.

The decision held that Connecticut employees who have received approval from the state agency to use medical marijuana outside of work cannot be fired just because they test positive for marijuana during a drug screening.  In doing so, the court held that employees and job applicants can sue based on a termination or a rescinded job offer.

As my colleague wrote for my firm’s alert:

Unlike the laws of other states permitting residents to be prescribed medical marijuana, Connecticut’s statute expressly makes it unlawful to refuse to hire or to discharge an employee solely because of the individual’s status as a qualifying patient, or for testing positive in a drug screening as a result of using medical marijuana within the protections of the statute. However, Connecticut does not protect such individuals if they are found to be using or are under the influence of medical marijuana during working hours.

The court analyzed federal drug laws and determined that they do not address the issue of employment and do not make it unlawful to employ a medical marijuana user. As a result, even though federal law prohibits possession or use of marijuana, those restrictions do not apply to someone properly using medical marijuana under state law.

The decision follows one from Massachusetts that we previously recapped here.

In prior posts, I’ve talked about the difficulties for employers trying to navigate this still-developing area of law.  Employers should proceed carefully under such circumstances and ensure compliance with the state’s medical marijuana laws that prohibits firing employees solely because of the individual’s status as a qualifying medical marijuana patient.

If an employee is under the influence of marijuana during working hours, that may afford employers the opportunity to take decisive employment action but other circumstances may not be so clear.

Consulting with your legal counsel on this changing area of law is advisable for the foreseeable future while more court decisions define the parameters of acceptable action.

While the relaunch of the blog has been delayed a bit more (I swear it’s coming soon), it’s time to have another post in the interim. My colleague Gary Starr is back with an interesting decision from the state next door — Massachusetts. As some Connecticut employers cross state lines (and marijuana cases continue to arise), the case is a reminder that the law continues to evolve in unexpected ways.

Many states have approved the use of medical marijuana, despite the fact that the federal government continues to classify marijuana as a Schedule I controlled substance.  As a result there is a tension between state rights to use medical marijuana and federal law prohibiting its possession.

The Massachusetts Supreme Judicial Court had an opportunity to determine how to balance the rights of an employee who had been prescribed and was taking medical marijuana for Crohn’s Disease versus the employer’s interest in complying with federal law and maintaining a drug free work place.  The Court found that the employee had sufficiently alleged that she was a qualified individual with a disability who was entitled to a reasonable accommodation related to use of medical marijuana.

As a result, her firing after testing positive could be challenged and she could pursue a disability discrimination claim under state law.

As part of the hiring process, a new employee was required to take a drug test.  She immediately explained to her supervisor that she suffered from Crohn’s disease and she had been prescribed and was using medical marijuana which was improving her appetite and allowing her to stabilize her weight.  She said that she did not take it before work or during working hours, but that if tested, she would test positive.  After being tested and getting a positive result, the human resource administrator called and fired her.  When the employee tried to explain the she had a prescription, the administrator told her that the company follows federal law, not state law.

The employee ultimately sued in state court claiming that she was being discriminated against because of her disability and that the company had failed to accommodate her disability.

The lower court had dismissed the case, but the highest Massachusetts court concluded that the employee had sufficiently alleged that she had a disability, that she was qualified for the position, and that she was entitled to a reasonable accommodation.  As a result, the case was sent back to the lower court for further proceedings.

The high court, however, also made clear that the employer could still win, but the employer must show that the accommodation was not reasonable and/or caused an undue burden.  The court noted that the employee could not come to work intoxicated, nor could the employee engage in tasks that could pose a risk to the public.

It also noted that if the employer was subject to federal laws related to a drug free work place or similar obligations, then the accommodation could be found unreasonable.

In Massachusetts, employers must not simply apply a drug free work environment policy, but must look at each situation to determine whether the employee is entitled to a reasonable accommodation.  In states that have adopted medical marijuana statutes — like Connecticut — employers must decide whether the employee has a disability, how to handle a request for an accommodation, and whether there is a compelling reason to deny the accommodation based on undue hardship.

It is also critically important to meet with and discuss the situation with the employee to determine whether there is an alternative to the use of medical marijuana and to review how the job is structured to see if the employee can do the essential functions without violating company policies or impairing the company’s business operation.  It is also important to determine the scope of the medical marijuana statute to determine whether employees have additional employment rights under state statutes.

In states where an employee has been prescribed medical marijuana, employers may not be able to fire an employee who has simply failed a drug test.  More questions must be asked before firing someone who tests positive for marijuana.

Many states have approved the use of medical marijuana, despite the fact that the federal government continues to classify marijuana as a Schedule I controlled substance.  As a result there is a tension between state rights to use medical marijuana and federal law prohibiting its possession.  The Massachusetts Supreme Judicial Court had an opportunity to determine how to balance the rights of an employee who had been prescribed and was taking medical marijuana for Crohn’s Disease versus the employer’s interest in complying with federal law and maintaining a drug free work place.  The Court found that the employee had sufficiently alleged that she was a qualified individual with a disability who was entitled to a reasonable accommodation related to use of medical marijuana.  As a result, her firing after testing positive could be challenged and she could pursue a disability discrimination claim under state law.

As part of the hiring process, a new employee was required to take a drug test.  She immediately explained to her supervisor that she suffered from Crohn’s disease and she had been prescribed and was using medical marijuana which was improving her appetite and allowing her to stabilize her weight.  She said that she did not take it before work or during working hours, but that if tested, she would test positive.  After being tested and getting a positive result, the human resource administrator called and fired her.  When the employee tried to explain the she had a prescription, the administrator told her that the company follows federal law, not state law.

The employee ultimately sued in state court claiming that she was being discriminated against because of her disability and that the company had failed to accommodate her disability. Continue Reading Employer’s Defense Goes Up In Smoke

With all the talk about the state’s implementation of medical marijuana laws, it’s easy to wonder what impact those laws will have on terminating employees who use marijuana on the job.

One recent Superior Court decision gave a pretty clear answer for state employees: None.  In other words, for employers: Fire Away.

That, of course, simplifies the decision and the result — employers should still exercise caution when disciplining employees for drug use to understand the facts and circumstances — but the court’s decision is yet another affirmation that the statestillhas a strong public policy against the use of marijuana, at least for its employees.

The case, State of Connecticut v. Connecticut Employees Union Independent, arises from the State’s challenge to an arbitration award reinstating an employee who was terminated for using marijuana while on the job.  The State contended that the award should be vacated on public policy grounds.

The Superior Court agreed with the State because it violates the state’s well established public policy on illegal drug use while on state duty.

The union argued that the award must be confirmed because the State is “currently implementing the legalization of medical marijuana.”  The court rejected that argument pretty simply by stating that even if that’s the case, there is “nothing in the records [to] indicate that grievant was prescribed marijuana.

Regardless, as I said back in 2012:

  • Employers MAY continue to prohibit the use of intoxicating substances, including marijuana, at work.
  • Employers MAY continue to discipline employees for being under the influence of intoxicating substances at work.

It remains to be seen whether other lower courts will follow this path and whether the appellate courts in Connecticut will confirm this logic. But for now, this decision from the Superior Court ought to make employers breathe just a little easier on that point.

 

The news this week that Connecticut has given its approval to four medical marijuana growers in Simsbury, West Haven, Portland, and Watertown, inches the state that much closer to full implementation of the medical marijuana law that was passed in 2012.

The state also reported that over 1600 individuals in Connecticut have been certified by the state to receive medical marijuana.  That number is expected to grow once production begins in earnest.

Add to that news, the recent legalization of marijuana in Colorado and Washington and employers now have a whole new area of law to familiarize themselves with.

It would be easy to just write some puns on the matter (and who can resist it in the headline) but it’s not such a laughing matter to employers struggling to figure out what the rules of the road are.

I previously talked about what is and is not covered in Connecticut’s medical marijuana laws in a post back in 2012.  At the time, I noted that there were five important takeaways:

  • Employers may not refuse to hire a person or discharge, penalize or threaten an employee based solely on such person’s or employee’s status as a qualifying patient or primary caregiver.
  • Employers may discriminate if required by federal funding or contracting provisions.
  • Employers MAY continue to prohibit the use of intoxicating substances, including marijuana, at work.
  • Employers MAY continue to discipline employees for being under the influence of intoxicating substances at work.
  • But employers MAY NOT presume that a drug test result that is positive for marijuana means that the employee used at work or was under the influence at work.

 The Connecticut Law Tribune published an interesting column from my former colleagues this week talking about some hypothetical situations that may arise.  As the column notes, a bit of a conundrum still exists for employers.

While it is clear under [state law] that an employer may terminate or discipline an employee who reports to work impaired on account of his/her medical marijuana use, the law does not address how employers are to treat employees … who use marijuana during non-work hours, but will inevitably fail routine drug tests administered pursuant to a drug-free workplace policy.

If the employer terminates [the employee] for violating its policy, it risks liability if she proves she was not under the influence at work. On the other hand, if it does not terminate …, the employer risks liability should [the employee] report to work under the influence and injure herself or others.

Another novel issue that is arising? Suppose your employee is on a business trip in Colorado.  After a sales meeting, on the way back to his hotel, the employee legally purchases and then consumes some Rocky Mountain marijuana.  Can you discipline the employee for engaging in a legal activity while on “company business”?

As long as we have disparate state laws on the subject, we’re not going to get clear cut answers.  For employers, be sure to stay up to date on the developments and talk with your legal counsel about the implications for your business now that we are on the outskirts of implementation.

It’s been nearly two months since Connecticut’s “medical marijuana” law became effective.  Yet many employers have been blissfully ignorant about what the law provides, perhaps because Connecticut does not yet have a home-grown supply of marijuana and the registration process is just beginning.

But because of the law’s appeal, I would expect the impact to increase substantially in 2013.  Here are some key facts employers ought to know now:

What does the law provide?

  • It is legal for certain individuals to possess limited quantities of marijuana for “palliative use.”

    Are Policies “Up In Smoke”?
  • “Palliative Use” refers to the alleviation of a “qualifying patient’s” symptoms of a “debilitating medical condition.”
    • A “Qualifying Patient” is a Connecticut resident aged 18 or older who has been diagnosed by a physician as having a debilitating medical condition.
    • A “Debilitating Medical Condition” includes cancer, glaucoma, AIDS or HIV-positive status, Parkinson’s disease, multiple sclerosis, certain spinal cord injuries, Crohn’s disease, PTSD, and any other medical condition approved by the Department of Consumer Protection pursuant to regulations to be adopted.
  • Persons who may possess marijuana include qualifying patients and their “primary caregivers.”
How is the law being implemented and enforced?

What is the impact for employers?

  • Employers may not refuse to hire a person or discharge, penalize or threaten an employee based solely on such person’s or employee’s status as a qualifying patient or primary caregiver.
  • Employers may discriminate if required by federal funding or contracting provisions.
  • Employers MAY continue to prohibit the use of intoxicating substances, including marijuana, at work.
  • Employers MAY continue to discipline employees for being under the influence of intoxicating substances at work.
  • But employers MAY NOT presume that a drug test result that is positive for marijuana means that the employee used at work or was under the influence at work.
What about the interaction with the ADA?
 
There has yet to be a Connecticut case on this, but a recent case from the Ninth Circuit suggests the answer to the question: “What do I do if my employee asks to be permitted to smoke medical pot at work as a reasonable accommodation for a disabling medical condition?”  Because federal law still prohibits possession/use of marijuana, the court concluded that the ADA does not require this accommodation.
 
Will Connecticut law follow? We likely won’t have an answer to this question for some time.
 
What should employers consider doing now?
 
Employers should educate their staff as to the requirements of this new medical marijuana law and update policies, where necessary, to reflect the new legal requirements. 
 
For more on the national marijuana legalization trend, see this article in today’s Employment Law Daily.  And for more on the Connecticut law in general, see this article from the Connecticut Lawyer magazine (CBA membership required.)

Today, our firm held the last of two free seminars on employment law. Thanks to all who attended.

Surprisingly, one of the issues our attendees had a bunch of questions on was the new medical marijuana bill that became effective October 1, 2012. 

Now, I’m not going to go back over the entire bill in this post (you can see my prior post here).

But there are three things that we talked about that are worth repeating:

1. Employers can still prohibit employees from using marijuana at work and still prohibit employees from being intoxicated (or stoned) at work too.

2. While we don’t have a Connecticut case yet, it is unlikely that the ADA will require employers to consider a reasonable accommodation involving medical marijuana usage (such as being able to use it during work hours).  A Ninth Circuit case on this subject is useful.  Less settled is whether Connecticut’s law on disability discrimination might come out differently.

3.  Lastly, while an employer may not fire someone because of their status as a medical marijuana patient, the law does have an important caveat.  The employer can act if ”required by federal law or required to obtain federal funding.”  Thus, if there are, for example, commercial driving laws in your industry that restrict the use of marijuana, it appears that law will trump state law.

This is still a relatively new area for employers to deal with so to the extent you have additional questions, be sure to contact your local attorney for more details.

Back from Memorial Day weekend, there’s plenty of employment law news that I haven’t had time to write about. So here’s a brief recap of some recent items that may be of interest to employers:

The General Assembly over the weekend passed a comprehensive bill that permits individuals to use marijuana for palliative purposes.  The bill is expected to be signed by the Governor this month.

Are Policies "Up In Smoke"?

Besides just permitting individuals to use marijuana, it has several important provisions that will impact employers in Connecticut.  Unfortunately, as the history of medical marijuana bills in other states has shown, there are still many unanswered questions left.  Employers will be wise to seek legal counsel to understand the full implications of this bill in their specific industry and workplace.

(I previously discussed the impact of last year’s bill to decriminalize marijuana here.)

Under the new law (which you can download here), employers are prohibited from refusing to hire, firing, penalizing or threatening an employee “solely on the basis…as a qualifying patient or primary caregiver.”  The law does have an important caveat; the employer can act if “required by federal law or required to obtain federal funding.”  Thus, if there are, for example, commercial driving laws in your industry that restrict the use of marijuana, it appears that law will trump state law.

The law does not, however, clarify what it means to be “solely” on the basis of.  Does that mean an employer can consider it but just combine it with other reasons?  Does that mean if an employee brings in marijuana to work (but doesn’t use it) that would be sufficient grounds for termination?

Notably, the law also states that marijuana use is not allowed “(A) in a motor bus or a school bus or in any other moving vehicle, (B) in the workplace, (C) on any school grounds or any public or private school, dormitory, college or university property, (D) in any public place, or (E) in the presence of a person under the age of eighteen.”

Sounds good, right? Except what does “in the workplace” mean? Any place where the employee works? In the home office? What happens if the employee is an outside salesman? Can an employer still implement a “zero-tolerance” workplace policy?

Before an employer frets too much, the bill does add that the bill does not “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.”

So, if an employer still has a policy (much like it does for alcohol) that restricts the use of these substances during work hours, that appears to be safe.

But still, questions remain.  What if the employee requests a reasonable accommodation under state law to smoke marijuana during work hours, arguing that it will allow her to do her job?  There is no doubt that, despite some of the language in the statute, that some will seek to have this issue litigated.

For more background on how other states have dealt with this issue, see these posts from Michigan, Washington, Pennsylvania and Delaware

Employers that have had multi-state offices have had to address this for some time, but for all other employers, the new law is bound to cause a late night or two thinking about this.  You may want to break out some munchies: We’re in for a ride.