Last month Michigan became the 10th state to approve the legal, recreational use of marijuana. With the addition of Michigan, nearly 80 million Americans (approximately 25% of the US population) live in areas with recreationally legal marijuana. A total of thirty-three states allow for the use of marijuana for medical treatment with a doctor’s prescription. Missouri and Utah became the most recent additions to the growing list of states allowing for medical marijuana after voters passed legalization measures last election cycle.
However, marijuana remains illegal according to federal law as a Schedule I drug under the Controlled Substances Act (“CSA”). Further complicating matters for employers in the majority of states allowing for medical marijuana, Attorney General Jeff Sessions rescinded Obama era guidance which relaxed enforcement of marijuana laws in states that allow for medical use. In doing so, then-Attorney General Sessions called the prior guidance “unnecessary” and indicated federal prosecutors will “weigh all relevant considerations, including federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community.”
The federal judiciary has begun considering the apparent conflict between federal and state law, with differing results. In Carlson v. Charter Communications, LLC, plaintiff worked for approximately nine years before being issued a prescription for medical marijuana under Montana’s Medical Marijuana Act. Seven years later, the plaintiff was involved in a work-related accident resulting in a post-accident drug test. Plaintiff tested positive for marijuana, was subsequently terminated and filed suit alleging discrimination and retaliation under state law. The employer argued that, as a federal contractor, it was required to comply with the Drug-Free Workplace Act (“DFWA”) and “could not simultaneously permit marijuana use consistent with [state law] and at the same time ensure a drug-free workplace as defined under the DFWA…” The trial court dismissed plaintiff’s claims based upon his medical marijuana use as preempted by federal law and disregarded the assertion that plaintiff never used medical marijuana at work as “irrelevant to the conflict preemption analysis [because t]he questions remains whether the state and federal law, as applied, conflict, not whether Plaintiff hypothetically could comply with both.” Id. On November 19, 2018, the 9th Circuit affirmed the trial court’s dismissal, stating Montana’s state law “does not preclude a federal contractor from complying with all the requirements of the DFWA.”
On the other side of the country, a federal court in Connecticut reached a different conclusion following examination of the conflict between federal and that state’s medical marijuana law. In Noffsinger v. SSC Niantic Operating Company, the employer rescinded a job offer after learning the plaintiff was a medical marijuana user under Connecticut’s Palliative Use of Marijuana Act. Similar to the Carlson case, the employer took the position that as a federal contractor, it was required to maintain a drug-free workplace and the federal prohibition on marijuana preempts any state-law cause of action. The Connecticut federal court rejected both arguments. First, the court held Connecticut’s medical marijuana law explicitly gives workers the right to sue for job discrimination and that other federal law (i.e. the CSA which classifies marijuana as a Schedule I illegal drug), do not trump state-law rights because the CSA does not “regulate the employment relationship…” In granting summary judgment for the plaintiff as to liability on September 5, 2018, the court further noted nothing in the federal DFWA required the employer to refuse “to hire someone like plaintiff who uses medical marijuana during off-hours.” Less than two months after the court’s ruling in favor of the plaintiff, the case settled for an undisclosed amount.
It should be noted that Connecticut’s medical marijuana law provides much greater employment protections for its users than does Montana’s marijuana law. Specifically, Montana’s Medical Marijuana Act does not “permit a cause of action against an employer for wrongful discharge…or discrimination… [for] what is alleged to be [ ] lawful marijuana use.”  Conversely, Connecticut’s Palliative Use of Marijuana Act provides “[n]o employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the…employee’s status as a qualifying patient” under the state’s medical marijuana law. This distinction, however, likely provides cold comfort to employers simply seeking clarity in the law.
The Noffsinger and Carlson cases serve as a warning for employers attempting to navigate the conflict between federal and state law regarding an employer’s ability to regulate marijuana users in the workplace. Congress or the Supreme Court will ultimately be forced to resolve the apparent conflict between federal and state law. Until then, employers should carefully review their state’s marijuana law prior to making any employment decisions such as hiring and firing. Simply relying on the federal prohibition of marijuana may not be sufficient in states with laws specifically providing for employment protection of marijuana users.
 States with recreational use marijuana laws are Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington.
 Memorandum for all United States Attorneys on Marijuana Enforcement, Jan. 4, 2018, available at https://www.justice.gov/opa/press-release/file/1022196/download.
 Carlson v. Charter Commc’ns, LLC, 2017 WL 3473316, at *2 (D. Mont. Aug. 11, 2017), aff’d, 742 F. App’x 344 (9th Cir. 2018).
 Carlson v. Charter Commc’ns, LLC, 742 F. App’x 344 (9th Cir. 2018).
 Noffsinger v. SSC Niantic Operating Co. LLC, 273 F. Supp. 3d 326, 334 (D. Conn. 2017).
 Noffsinger v. SSC Niantic Operating Co., LLC, No. 3:16-CV-01938 (JAM), 2018 WL 4224075, at *3 (D. Conn. Sept. 5, 2018).
 Carlson v. Charter Commc’ns, LLC, No. CV 16-86-H-SEH, 2017 WL 3473316, at *3 (D. Mont. Aug. 11, 2017), aff’d, 742 F. App’x 344 (9th Cir. 2018) citing Mont, Code Ann. § 50-46-320.
 Conn. Gen. Stat. Ann. § 21a-408p.
Marijuana is still classified as a Schedule I controlled substance by the U.S. Drug Enforcement Agency, and as such, it remains a federal crime to grow, sell and/or use marijuana. Any content contained herein is not intended to provide legal advice to assist with violation of any state or federal law.
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