The Superior Court of Delaware recently issued a decision confirming the state's protections for medical marijuana users. On December 17, 2018, in Chance v. Kraft Heinz Foods Co., the court held that the federal Controlled Substances Act (CSA), which prohibits the use and sale of marijuana, does not preempt Delaware's Medical Marijuana Act (DMMA). While the Chance decision is not unique—both Connecticut1 and Rhode Island2 have recently issued decisions that reached the same conclusion—the decision is noteworthy as Delaware is one of the few states that expressly prohibits the discipline or discharge of employees who use medical marijuana outside of work and subsequently test positive on a job-related drug test absent evidence of on-duty use/possession or impairment. The language of the DMMA was therefore arguably more susceptible to a challenge that a conflict existed between state and federal law. The decision is also the first to imply a private cause of action under DMMA's employment anti-discrimination provision.
Plaintiff's Failed Drug Test and DMMA Claim
The plaintiff was employed by the defendant for several years until he decided to pursue a medical marijuana card to address several unidentified medical issues. Less than a year after obtaining his medical marijuana card, he was involved in a work-related accident while operating a "shuttle wagon" on railroad tracks in the facility. The shuttle wagon derailed and the circumstances of the accident prompted the defendant to send the plaintiff for a drug test. Although the first result was inconclusive, a test taken three days later resulted in a positive test for marijuana. Plaintiff was subsequently terminated for failing the drug test.
The plaintiff sued, alleging, among other claims, that the defendant violated DMMA's anti-discrimination provision and wrongfully terminated his employment in violation of the public policy underlying the DMMA. In essence, the plaintiff sought to assert a claim directly under the DMMA or to assert a common law claim based on Delaware's established public policy protecting medical marijuana users. The defendant moved to dismiss the DMMA claim because it was preempted by the CSA. The defendant also moved to dismiss the common law wrongful termination claim because the DMMA does not provide any public policy grounds for relief.
Delaware Court Finds CSA Does not Preempt DMMA, Implies Private Cause of Action
The Chance court concluded that DMMA did not conflict with the CSA, which is the federal statute criminalizing marijuana use. This conclusion is significant because the DMMA, unlike most other state medical marijuana statutes, expressly prohibits employers from disciplining employees or applicants simply because they test positive for medical marijuana unless the individual "used, possessed, or was impaired by marijuana on the premises of the place of employment or during the hours of employment."
In contrast, the CSA classifies marijuana as a Schedule I substance, which means it has been defined by the federal government as a drug with no currently accepted medical use and with a high potential for abuse. The conflict between state and federal law would appear obvious on its face: Delaware prohibits discipline of individuals who test positive for the medicinal use of a drug that the federal government has made illegal and concluded has no medical use.
The court acknowledged that the DMMA may appear "at odds" with the CSA at first glance; however, it ultimately concluded, like the 2017 Connecticut and Rhode Island decisions, that no conflict existed because the CSA does not make it illegal to employ someone who uses marijuana. The court further emphasized that the CSA does not seek to regulate any employment matters in this context. As a result, the court concluded that the DMMA does not pose an obstacle to the objectives of the federal government because it does not require employers to engage in any illegal activity; rather it simply prohibits employers from discriminating against those who engage in such activity (as a matter of federal law).
The court also held—again on an issue of first impression for Delaware—that an implied private right of action exists under the DMMA's anti-discrimination prohibition. While the statute does not expressly provide a cause of action, the court concluded that a private cause of action is the "only means of effectuating the statute's remedial purpose."
Finally, while the court ultimately dismissed the plaintiff's claim for wrongful termination in violation of the public policy evinced by the DMMA, it left open the door for a common law claim to be asserted in the future under a different set of facts. The court concluded that the plaintiff failed to adequately plead "whether or how he was responsible for ensuring [the defendant's] compliance with the DMMA," which is a required element of the common law claim.
Employer Takeaways
Chance relies heavily on two decisions issued previously in Connecticut and Rhode Island. In doing so, Delaware joins the growing minority of states that have concluded marijuana's unlawful status under federal law does not bar a discrimination claim based on conduct protected by state medical marijuana laws. While the decision specifically concerns the statutory language of the DMMA, all of these decisions may encourage increased challenges to preemption in other states – even those that offer fewer protections to medical marijuana users.
As noted above, Chance also is significant because the court concluded that there is a private cause of action for violations of the DMMA's discrimination provision. By recognizing an implied cause of action, the decision will increase the potential for litigation in Delaware as well as other states with medical marijuana laws without an express statutory enforcement mechanism, including but not limited to under state disability discrimination laws.
Employers should also be aware that Chance highlights a growing concern about available methods to test "impairment" by marijuana. While the DMMA does allow discipline of employees who were "impaired" by marijuana on the premises or during work hours, there is currently no toxicological consensus on what level of THC in an individual's system constitutes impairment. As a result, an employer in Delaware cannot rely solely on a positive test result to demonstrate impairment. Any decision must be bolstered by additional evidence of impairment such as contemporaneous observations of diminished physical or mental capabilities. This underscores the importance of implementing and maintaining a robust reasonable suspicion drug testing program to identify signs of impairment before a test is required.
While Chance is a lower court decision and not binding on other courts in other jurisdictions, it demonstrates a growing trend in favor of increased protections for medical marijuana users. While employers in Delaware should take note of this decision and consider modifying their practices accordingly, other employers in other jurisdictions should remain tuned in to this rapidly developing area as the case law and legislation continues to evolve.
Footnotes
1 See Noffsinger v. SSC Niantic Operating Co, LLC, 273 F. Supp. 3d 326 (D. Conn. 2017); see also Dale L. Deitchler and Elizabeth R. McKenna, In the First Case of its Kind, Court Rules Federal Law Does Not Trump Employee Protections under State Medical Marijuana Law, Littler Insight (Aug. 16, 2017); Dale L. Deitchler and Elizabeth R. McKenna, Connecticut Continues to Extend Protections to Employees under State Medical Marijuana Law, Rejects Federal Preemption Defense, Littler Insight (September 11, 2018)
2 See Callaghan v. Darlington Fabrics and the Moore Company, 2017 R.I. Super. LEXIS 88 (R.I. Super. May 23, 2017); see also Eric B. Mack and Mary Kate Sexton, Rhode Island Superior Court Rules on Job Applicant's Medical Marijuana Use, Littler Insight (June 15, 2017).
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