In a recent decision, Palmiter v. Commonwealth Health Systems, the Pennsylvania Court of Common Pleas held that: (a) the Pennsylvania Medical Marijuana Act (“MMA”) creates a private right of action for wrongful termination; and, alternatively, (b) an employee who claims to have been terminated for medical marijuana use authorized under the MMA can bring a claim of wrongful termination in violation of public policy.  This Pennsylvania court now joins courts in several other states, including Arizona, Connecticut, Delaware, Massachusetts, New Jersey, and Rhode Island, which have allowed adverse action claims against employers by employees or applicants who used medical marijuana under state law.
Continue Reading Pennsylvania Court Allows Medical Pot User To Proceed With Wrongful Termination Suit

Employers are grappling with the wave of marijuana laws sweeping the nation, some of which provide very employee-friendly protections. While no state requires an employer to tolerate employees’ use of marijuana or impairment while they are working, present drug testing methodologies cannot determine whether an employee used marijuana two hours or two weeks ago. That might be changing as companies reportedly are closer to developing technology that will be able to detect recent use, a welcome development for both employers and employees.
Continue Reading Marijuana Breathalyzers: Could New Testing Methods Help Employers And Employees?

Seyfarth Synopsis: The Tenth Circuit is set to decide whether workers in Colorado’s legalized marijuana industry are entitled to wage and hour protections under the FLSA. 

The Fair Labor Standards Act (FLSA) is the federal statute that provides wage and hour benefits to certain employees.  On the other hand, the Controlled Substances Act (CSA) is a federal statutes that categorizes marijuana as a Schedule I drug, meaning it is illegal under federal law.  Simple possession (let alone participating in its manufacture and distribution) is illegal, irrespective of state law to the contrary.  In the wake of widespread legalization of recreational marijuana in states across the country, a questions has arisen as to whether the FLSA was meant to provide wage and hour protections to employees of businesses engaged in the manufacture or distribution of Schedule I drugs under the CSA.

Background

This question has been put to the test in Kenney v. Helix TCS, Inc..  In Kenney, an employee of Helix, which provides armed security and transport services for businesses that grow and distribute marijuana, filed a putative collective action against Helix under the FLSA.  Kenney claims that Helix misclassified him, and similarly situated employees, as exempt and owes them overtime wages.  In response, Helix moved to dismiss the action, arguing that Kenney is not entitled to the protections of the FLSA because he is employed in the marijuana industry, which is entirely forbidden under the CSA.

The District Court denied Helix’s motion to dismiss.  The Court observed that Helix did not cite any cases in support of its theory, while Kenney relied on Greenwood v. Green Leave Lab LLC, which held that a plaintiff employed in a marijuana-testing laboratory under Oregon’s recreational marijuana law was entitled to protections under the FLSA, notwithstanding the CSA’s prohibition on marijuana.  Further, the Court held that businesses are not precluded from complying with federal laws because their business practices may violate other federal laws.  Nonetheless, the Court certified the ruling for immediate appeal to the Tenth Circuit with respect to the issue of whether Kenney is a covered employee under the FLSA. 
Continue Reading DIRTY WAGES: TENTH CIRCUIT TO DECIDE WHETHER EMPLOYEES IN THE MARIJUANA INDUSTRY ARE COVERED UNDER THE FLSA

On September 5, 2018, a federal district court in Connecticut granted summary judgment to a job applicant after an employer refused to hire her because she tested positive for marijuana in a pre-employment drug test. The decision, Noffsinger v. SSC Niantic Operating Co., LLC, d/b/a Bride Brook Nursing & Rehab. Ctr., should serve as a reminder to employers operating in states with medical marijuana laws to evaluate their policies and practices concerning employee use of marijuana outside the workplace.
Continue Reading Federal Judge Rules that Employer Violated Connecticut Law by Refusing to Hire Medical Marijuana User

Amidst a public disagreement between President Trump and Attorney General Jeff Sessions regarding the conflict between federal and state marijuana laws, Sen. Elizabeth Warren (D-MA) and Sen. Cory Gardner (R-CO), announced introduction of a bipartisan bill to protect states with pot-friendly laws against federal prosecution. The bill, introduced on June 7, 2018 and called the “Strengthening the Tenth Amendment Through Entrusting States Act” or the “STATES Act”  proposes to protect state cannabis industries from the ire of federal drug enforcement authorities. A companion bill also has been introduced in the House.  The full text of the Senate bill, S. 3032, is available here, and the corresponding House bill, H.R. 6043, is available here.
Continue Reading Will President Trump Support a Bipartisan Congressional Effort to Protect State Marijuana Laws?

On March 9, 2018, the Massachusetts Cannabis Control Commission (“CCC”) filed its much anticipated recreational marijuana Regulations with the Massachusetts Secretary of State.  According to the CCC, the Regulations are on track to be published in the Massachusetts Register on March 23, 2018.  The Regulations will become effective upon publication.  While the Regulations are comprehensive in many ways, for most employers the Regulations are most notable for what they lack, namely guidance regarding employer-employee rights and responsibilities.
Continue Reading Massachusetts Recreational Pot Regulations Offer Little Guidance To Employers

A recently-filed lawsuit in the federal district court in Arizona alleges that an employee’s use of medical marijuana may be permissible under the federal Americans With Disabilities Act (“ADA”).  Although the employee faces an uphill battle, the case presents a challenge to the commonly-held view that the ADA does not support such a claim.

In Terry v. United Parcel Services, Inc., No. 2:17-cv-04972-PHX-DJB (D. Ariz., filed Dec. 29, 2017), a former UPS sales director alleges, among other things, that UPS terminated his employment in violation of the ADA and the Arizona Medical Marijuana Act (“AMMA”).  Terry alleges that he was a medical marijuana card holder under the AMMA, and that, at the direction of his doctor, he used medical marijuana during non-work hours to treat his nearly constant and extreme hip pain.  He claims that he never possessed, used, or was impaired by marijuana, alcohol, or any other impairing substance while present on UPS’s premises or during working hours.  According to the complaint, in April 2017, UPS required Terry to report immediately for a drug and alcohol screening test, and was informed that the reason for the test was “observable behavior.”  At a meeting with UPS officials one week later, Terry claims that UPS terminated his employment due to his positive drug and alcohol screening results and violating the company’s drug and alcohol policy.  Terry claims that he responded by notifying UPS that he has a valid medical marijuana card under the AMMA and a valid prescription for Adderall that he took to treat his ADD.
Continue Reading A Potential P[l]ot Twist for Medical Marijuana and the ADA

On July 17, 2017, the Massachusetts Supreme Judicial Court (“SJC”), the highest state court in Massachusetts, held that an employer could be liable for disability discrimination by declining employment based on an individual’s off-duty medical marijuana use. This is a landmark decision, which has major implications for employers with drug testing programs and drug-free workplace policies.
Continue Reading Is Medical Marijuana A Reasonable Accommodation? Mass. Court Says … Possibly

On May 23, 2017, in Callaghan v. Darlington Fabrics Co., a Rhode Island Superior Court issued a unique decision regarding employer obligations to medical marijuana users.  The Judge who penned the decision began his analysis by quoting a 1967 lyric from The Beatles’ song “With A Little Help From My Friends”: “I get high with a little help from my friends.”  In the 32-page opinion following this witty opening, the Court held that an employer’s refusal to hire an individual based on her medical marijuana use violated Rhode Island’s medical marijuana statute, and the employer’s conduct may have amounted to disability discrimination under the Rhode Island Civil Rights Act (“RICRA”). 
Continue Reading Refusal to Hire Medical Pot Users Just Got Riskier–At Least In Rhode Island