Delaware Medical Marijuana Cardholder is Terminated Following Positive Drug Test, Survives Motion to Dismiss from Employer After Suing for Discrimination

Delaware Medical Marijuana Cardholder is Terminated Following Positive Drug Test, Survives Motion to Dismiss from Employer After Suing for Discrimination

Medical marijuana laws have been around for several years.  33 states and the District of Columbia have laws allowing for the use of marijuana in some form for medical purposes.  However, the number of cases discussing those laws and their impact on individuals and employers are still very limited.  So when we see a case involving the use of medical marijuana, it is important to take note, because even though decisions from other states may not set a precedent, they may serve as persuasive authority in your state if the laws are similar in nature.

Such is the case in Chance v. Kraft Heinz Food Co., a decision from Delaware when the plaintiff, a medical marijuana cardholder, was terminated from his position as a yard worker after testing positive for marijuana.  The plaintiff was terminated from his position even though he presented his medical marijuana card to his employer when given the opportunity to explain his positive test.

The Delaware medical marijuana statute, the DMMA, includes the following anti-discrimination provisions:

[A]n 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 the hours of employment.

In its motion to dismiss, Kraft Heinz made two separate arguments: First, that the Delaware law was pre-empted by the Controlled Substances Act; and second, that a private right of action did not exist in the DMMA under which the plaintiff could bring a claim.  In regard to the first argument, the court found that there was nothing in the CSA that make it illegal to employ someone who uses marijuana or regulate employment matters in regard to medical marijuana usage.

In addressing the second argument, the court found for the plaintiff, stating, “Clearly, Plaintiff falls within the class of persons for whose especial benefit the statute was enacted, as (the law) seeks to prohibit discrimination against medical marijuana patients.”  The court also found that providing a private right of action for the plaintiff would advance the statute’s purpose, which was to protect patients with debilitating medical conditions.

As a result, the court denied Kraft Heinz’s motion to dismiss, and allowed to claim to proceed.  Minnesota employers should pay special attention to this case, as the Delaware law is one of the few laws in the U.S. that provides an anti-discrimination provision similar to Minnesota’s.

As a reminder, the Minnesota Therapeutic Research Act states the following with regard to employment:

Unless a failure to do so would violate federal law or regulations or cause an employer to lose a monetary or licensing-related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon either of the following:

(1) the person’s status as a patient enrolled in the registry program under sections 152.22 to 152.37; or

(2) a patient’s positive drug test for cannabis components or metabolites, unless the patient used, possessed, or was impaired by medical cannabis on the premises of the place of employment or during the hours of employment.

The similarities are uncanny.

Reliance on the results of a drug test in Minnesota will not get you very far in any case, as the Drug and Alcohol Testing in the Workplace Act provides protections beyond the anti-discrimination provisions of the Therapeutic Research Act.  In the end, it will be undoubtedly be easier to terminate an employee on the basis of misconduct rather than a positive drug test, and will be more likely to keep you out of the courts.

If you need any assistance with your workplace drug testing policy or decisions on employee drug tests, feel free to contact the attorneys at the Wiley Law Office for help that works.