Delaware has joined the small, but growing, list of state courts that have now held in favor of medical marijuana users under applicable state law.
Delaware Medical Marijuana ActIn a December opinion, the Superior Court of Delaware discussed whether an employer’s actions violated the Delaware Medical Marijuana Act (DMMA). For background, the DMMA provides protections to registered qualifying patients who use medical marijuana in compliance with the state law. Under the DMMA, employers (with limited exceptions) may not discriminate against an individual in hiring, termination or any other term or condition of employment based on the individual’s status as a registered qualifying patient. This discrimination prohibition includes a positive drug test unless the individual used, possessed or was impaired by marijuana on the employer’s premises or during the hours of employment.
Back to the case at hand. The plaintiff was employed by the defendant from May 2009 to August 2016. After suffering from a “number of medical ailments”, the plaintiff obtained a medical marijuana card in 2016. On August 9, 2016, the plaintiff submitted an incident report regarding unsafe conditions. Later that day, the plaintiff was operating a “shuttle wagon” when it derailed from the railroad tracks.
Following this incident, the employer requested the plaintiff undergo a drug test which was inconclusive. The plaintiff then took another drug test in which he tested positive for marijuana and the employer terminated the plaintiff for the failed drug test. The plaintiff filed suit alleging violations of the DMMA (among other claims).
Court OpinionThe court first considered the employer’s argument that federal law – the Controlled Substances Act – preempts the DMMA’s discrimination protections for qualified medical marijuana users in the employment context.
In its analysis, the court determined the Controlled Substances Act (CSA) prohibits marijuana use (without making exceptions for medical marijuana) but does not make it illegal to employ an individual who uses marijuana. Based on this determination, the court determined an employer could comply with the anti-discrimination requirements of the DMMA and the CSA.
The court also ruled that the DMMA created a private right of action, meaning individuals could file a lawsuit against an employer for alleged violations of the DMMA’s ant-discrimination provisions.
Key TakeawaysThis Delaware court decision joins others in Connecticut, Rhode Island and Massachusetts that have ruled on the side of the medical marijuana user versus the employer. It’s not just courts taking a more progressive stance toward the topic. Some locations have explored decriminalization efforts (such as San Francisco) and Washington Governor Jay Inslee recently announced the Marijuana Justice Initiative. Under this Initiative, individuals with a single misdemeanor marijuana possession conviction may participate in an expedited process to receive a pardon.
Employers should continue exploring whether changes to their drug testing and workplace policies are needed in light of the ever-evolving state approach to marijuana use.