A Delaware state court has held that a medical marijuana user may proceed with a lawsuit against his former employer after his employment was terminated due to a positive drug test result for marijuana. Chance v. Kraft Heinz Foods Co., C.A. No. K18C-01-056 NEP (Del. Super. Ct. Dec. 17, 2018).
Jeremiah Chance worked for Kraft Heinz as a Yard Equipment Operator. He suffered from various back problems and obtained a medical marijuana card in 2016. In August 2016, Chance was involved in an accident at work and was required to undergo a drug test. He tested positive for marijuana and informed the Medical Review Officer that he used medical marijuana. His employment was terminated.
Chance initially filed a complaint in which he alleged discrimination due to medical marijuana use and OSHA retaliation. He subsequently amended his complaint, alleging (i) violations of the Delaware Medical Marijuana Act (DMMA); (ii) violations of the Americans with Disabilities Act (ADA); (iii) violation of the Delaware Whistleblowers’ Protection Act; and, (iv) common law wrongful termination. Kraft Heinz moved to dismiss all of the claims.
In particular, Chance relied on the anti-discrimination provision of the DMMA, which provides that: “an employer may not discriminate against a person in hiring, termination, or any term or condition of employment . . . if the discrimination is based upon either of the following: a. The person’s status as a cardholder; or b. A registered qualifying patient’s positive drug test for marijuana . . . unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during his hours of employment.”
Kraft Heinz argued that federal law preempts the DMMA because under the federal Controlled Substances Act, marijuana is illegal. The Court, however, found persuasive the opinions of the courts in Noffsinger v. SSC Niantic Operating Co., LLC, 273 F. Supp.3d 326 (D. Conn. 2017) and Callaghan v. Darlington Fabrics Corp., 2017 R.I. Super. LEXIS 88 (R.I. Super. May 23, 2017). Those Connecticut and Rhode Island cases held that there was no conflict between the federal Controlled Substances Act and the state medical marijuana laws at issue. (Our blog posts discussing those cases can be found here, here, and here).
The Chance Court started its analysis of the preemption issue by noting that the Controlled Substances Act “does not make it illegal to employ someone who uses marijuana, nor does it purport to regulate employment matters within this context.” The Court stated that the anti-discrimination provisions of the DMMA do not pose an obstacle to the objectives of Congress and do not require employers to participate in illegal activity. Rather, the DMMA only prohibits employers from discriminating against employees based upon medical marijuana use. The Court therefore rejected the employer’s preemption argument.
Moreover, the Court held that a private right of action is implied in the DMMA, because the DMMA provides no specific remedy for qualifying marijuana patients who are terminated from employment for failing drug tests. Without an implied private right of action, the Court reasoned, the anti-discrimination provision of the DMMA would be devoid of purpose within the broader context of the statute. Chance therefore was permitted to proceed with his claim alleging that his termination violated the DMMA.
The Court dismissed Chance’s ADA claim because he did not initially allege that he was terminated due to a disability; rather, he alleged only that he was terminated due to his medical marijuana use.
This case is the third in the last two years to hold that the federal Controlled Substances Act does not preempt state medical marijuana anti-discrimination provisions. Employers who operate in states where the medical marijuana law prohibits employment discrimination should take note and should consider revising policies that purport to rely on marijuana’s classification as an illegal drug under federal law.