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Employers cannot refuse to hire a medical marijuana cardholder, even if the individual admittedly would not pass the employer's pre-employment drug test required of all applicants, a Rhode Island state court has held under the state medical marijuana law Callaghan v. Darlington Fabrics Corp., No. PC-2014-5680 (R.I. Super. Ct., May 23, 2017). The court granted summary judgment to the plaintiff-applicant.
The plaintiff had applied for a paid internship with the employer and disclosed that she had a medical marijuana card and would not pass the employer's required pre-employment drug test. The employer's policy prohibited only the use of drugs on company property. It did not state that a positive drug test result would lead to withdrawal of a job offer.
When she was not hired, the plaintiff sued the employer under the Rhode Island medical marijuana law, the Hawkins-Slater Act, as well as the state's disability discrimination statute, for refusing to hire her.
The Hawkins-Slater Act provides, "No school, employer, or landlord may refuse to enroll, employ, or lease to, or otherwise penalize, a person solely for his or her status as a cardholder."
The act, however, also provides, "Nothing in this chapter shall be construed to require … [a]n employer to accommodate the medical use of marijuana in any workplace."
In a 32-page opinion that opened with a Beatles quote on getting high, the Rhode Island Superior Court granted summary judgment to the plaintiff.
The court held the act created an implied private right of action in large part because, without such an implied private right, the law's prohibition on refusing to employ an individual solely because of his or her status as a medical marijuana cardholder would be rendered meaningless.
The court rejected the employer's argument that the law permitted a distinction between refusing to hire because of cardholder status (admittedly unlawful under the act's plain language) and refusing to hire because of an inability to pass a mandatory pre-employment drug screen, urging the court to interpret the act to prohibit employers from refusing to hire under both scenarios.
Referencing the employer's own policy language, the court also rejected the argument that employers had no obligation to accommodate medical marijuana use under the act on the premise that the act distinguishes between the medical and nonmedical use of marijuana.
While the court agreed that employers are not required to tolerate employees who report for work under the influence of marijuana, it held the act expressly states that an employer may not refuse to employ a person due to his or her status as a medical marijuana cardholder.
Therefore, the court ruled the employer violated the act in refusing to hire the plaintiff even though she admittedly could not pass the pre-employment drug test.
Disability Discrimination Claim
As to the applicant's disability discrimination claim under state law, the court rejected the employer's argument that, having no knowledge of the plaintiff's disability, it could not have discriminated against her.
The court ruled that discrimination could be shown "against a class of disabled people—namely, those people with disabilities best treated by medical marijuana." It also concluded medical marijuana users are not precluded from bringing a state law disability discrimination claim, despite that: (1) the law disclaims protections to those who seek remedies based on his or her illegal drug use; and (2) marijuana remains illegal under federal law.
Further, despite relevant case law from other states and the U.S. Supreme Court, the court also rejected the defendants' argument that federal law (i.e., the Controlled Substances Act) preempted state law. Unpersuaded by the fact that marijuana remains illegal under federal law at all times and for all purposes, the court held it was not "physically impossible" to comply with both federal and state laws. It stated that Rhode Island's law governs only marijuana use in the workplace and that "what an employee does on his or her off time does not impose any responsibility on the employer."
The court also emphasized the fact that Congress has passed spending bills in the past few years prohibiting the Department of Justice from using federal funds to prevent states from implementing their own laws with regard to medical marijuana.
The complicated landscape for employers who conduct drug testing for marijuana is further complicated by Callaghan.
An employee's off-duty use of marijuana may cause the employee to test positive on a workplace drug test because marijuana may stay in the fatty tissues of the body for up to weeks.
While Callaghan certainly will be appealed, the ever-swirling debate surrounding marijuana and a growing sense, in some quarters, that marijuana use is acceptable (both recreationally and medically) highlight the need for employers—in Rhode Island and elsewhere—to consider the marijuana laws affecting their workplaces and how they will handle the question before an actual issue arises.
Matthew F. Nieman is an attorney with Jackson Lewis in Washington, D.C. Kathryn J. Russo is an attorney with Jackson Lewis in Long Island, N.Y. Sarah R. Skubas is an attorney with Jackson Lewis in Hartford, Conn. © Jackson Lewis. All rights reserved. Reposted with permission.
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