Are Courts Now Ruling In Favor Of Legal Weed-Using Employees?

By Kelly Burch 10/09/18

A recent case may change the legal precedent for employees who use marijuana.

cannabis leaf and gavel

Courts around the country are beginning to rule against employers who terminate people for using cannabis in states where medical or recreational use is legal, reversing years of courts siding with employers on the issue. 

Last month a federal judge ruled in favor of Katelin Noffsinger, who sued a Connecticut nursing home that rescinded her job offer when she tested positive for THC. Noffsinger had told the nursing home that she used medical cannabis pills at night to control her PTSD.

Still, when she tested positive for cannabis the nursing home said that she could not work for them, saying it could jeopardize federal funding that the home received. 

This is the first time that a federal judge has ruled in favor of someone using medical marijuana, according to TIME. In previous cases judges have ruled that employers can terminate or not hire a person who uses cannabis because the drug remains illegal under federal law.

“This decision reflects the rapidly changing cultural and legal status of cannabis, and affirms that employers should not be able to discriminate against those who use marijuana responsibly while off the job, in compliance with the laws of their state,” Paul Armentano, deputy director of NORML, a pro-marijuana group, told TIME

Previously, case law indicated that judges were likely to side with employers, but the Noffsinger case could change the precedent. 

“This is a very significant case that throws the issue in doubt for many of these federal contractors,” said Fiona Ong, an employment attorney with the Baltimore firm of Shawe Rosenthal. “It’s certainly interesting and may be indicative of where the courts are going with this.”

Thirty-one states have medical marijuana programs. However, only nine states—including Connecticut—have made it illegal to discriminate against someone based on their use of medical marijuana.

Still, cannabis use is a grey area in employment. Some states prohibit employers from discriminating against someone for using outside work hours, but this gets complicated in states where cannabis use is legal, while it remains prohibited on the federal level. 

“What is cannabis if it’s lawful on the state but not the federal level?” William Bogot, co-chair of the cannabis law practice at Fox Rothschild, told CityLab in 2016.

U.S. District Judge Jeffrey Meyer, who ruled in the Noffsinger case, pointed out that the federal Drug Free Workplace Act, which dictates drug-testing policies, does not require drug testing and does not prohibit federal contractors from employing people who use legal medical marijuana outside of work. Some employers have stopped testing for THC. 

Recently, state judges in Rhode Island and Massachusetts also ruled in favor of people who were denied employment because of their cannabis use, prompting the American Bar Association to call the cases “an emerging trend in employment litigation.”

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Kelly Burch writes about addiction and mental health issues, particularly as they affect families. Follow her on TwitterFacebook, and LinkedIn.