Dear Legal Mailbag:
Can a public school district in Connecticut refuse to hire or terminate a teacher who qualifies for the medical marijuana program (assuming the teacher only uses medical marijuana outside of school and not before or during teaching)? We were chatting about this in the teachers’ room over lunch, and as a teacher and self-professed school law nerd, I tracked down PUMA. However, I am finding what seems to be conflicting rules. I read that this law prohibits discrimination against users of medical marijuana. However, PUMA then seems to provide that employers that receive federal funding are exempt from this prohibition because marijuana is still illegal under federal law.
Since school districts receive federal funding, does this mean that teachers would not be protected by PUMA? I am wondering what actions districts can take (or typically take) if a prospective employee is a qualifying patient and/or tests positive for THC during a pre-employment screening or after having to submit a drug test as a result of an accident in the workplace. Please enlighten me!
Connecticut passed the Palliative Use of Marijuana Act (PUMA) in 2012. This law is now codified at Conn. Gen. Stat. § 21a-408 et seq. Under PUMA, a “qualifying patient” is entitled to various protections associated with his or her “palliative use” of medical marijuana, which the statute describes as the use of marijuana for medical purposes to alleviate a qualifying patient’s symptoms of a debilitating medical condition. Those statutory protections include a prohibition against an employer’s discriminating against an applicant or employee solely because of that person’s status as a qualifying medical marijuana patient under state law.
The crux of your question turns on a basic condition of the protection in PUMA. The prohibition against taking action against an employee for the palliative use of marijuana does not apply if such action is “required by federal law or required to obtain federal funding.” In reviewing this condition, however, the federal district court in Connecticut interpreted this exception narrowly. Noffsinger v. SSC Niantic Operating Company, LLC, 273 F.Supp.3d 326 (D. Conn. 2017); Noffsinger v. SSC Niantic Operating Company, LLC, 338 F.Supp.3d 78 (D. Conn. 2018).
In that case, the federal district court considered the employer’s claim that the federal Drug Free Workplace Act required that it reject the application of a person engaged in the palliative use of marijuana. The court rejected this argument, holding that neither the federal law prohibiting the use of marijuana nor the Drug Free Workplace Act requires that employers discriminate against such employees. More generally, Legal Mailbag is not aware of any statutory duty imposed by federal law on school districts to take disciplinary action against teachers engaged in the palliative use of marijuana. By contrast, the story is different for school bus drivers, who by federal law are required to pass drug tests as a condition of continued employment as a matter of public safety.
In any event, Legal Mailbag reminds you that the protections of PUMA are subject to other limitations. The law provides that PUMA 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.” Conn. Gen. Stat. § 21a-408p(b)(3). In addition, PUMA carves out the following other exceptions to the protection against discrimination on the basis of the palliative use of marijuana. The following actions are not protected:
(1) Any palliative use of marijuana that endangers the health or well-being of a person other than the qualifying patient or the primary caregiver; or
(2) The ingestion of marijuana (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, unless such college or university is participating in a research program and such use is pursuant to the terms of the research program, (D) in any public place, or (E) in the presence of a person under the age of eighteen, unless such person is a qualifying patient or research program subject.
Conn. Gen. Stat. § 21a-408a(b) (emphasis added).
In sum, the protections PUMA provides for the palliative use of marijuana are significant, but not unlimited. Now you are the expert for the next discussion of PUMA over lunch!
Originally appeared in the CAS Weekly Newsletter.