Medical Marijuana Law Does Not Impair Employers’ Right to Drug-Free Workplace

A Connecticut employer has the right to terminate an employee who is impaired by medical marijuana in the workplace.

The Connecticut Appellate Court on March 19 upheld the dismissal of a lawsuit brought against a nonprofit pre-school by a teaching assistant who used medical marijuana for treatment of her disability and was fired for violating the school’s drug-free workplace policy by showing up for work impaired.

The court ruled that even though Connecticut has a law permitting use of marijuana for medical purposes, employers still “may prohibit qualifying patients from being under its influence in the workplace.” According to the appellate court, employees making claims under Connecticut’s Palliative Use of Marijuana Act (PUMA) must show that they were terminated solely because the employee had a prescription for medical marijuana.

The court also affirmed the right of an employer to seek a drug test of an employee when the employer has a “reasonable suspicion” that an employee is violating its drug free policy.

Prescriptions

Alyssa Bartolotta had a doctor’s prescriptions for Valium and medical marijuana as part of treatment for her epilepsy. She did not inform her employer, Human Resources of New Britain Inc., of her epilepsy or her Valium or medical marijuana use until after incidents at work.

She told her employer about her epilepsy and Valium only after she had a seizure at work. Thereafter, the school made some accommodations for her including letting her leave for the day whenever she had a seizure and assigning her to a room where she would always be with another teacher.

The employer, however, declined her request to have the school nurse hold some doses of Valium on the premises for her in case she needed it. In denying her request, the school stressed its drug-free policy and that the part-time nurse was not authorized to administer medications. The school told her she could hold the Valium at work herself.

In an incident on January 2, 2019, after a fellow employee questioned her behavior at the school when she called a child by the wrong name, Bartolotta acknowledged that “her head was just not right” because she likely had ingested too much marijuana and the effects carried over into the workday. Her medical protocol called for her to take the drugs at 8 pm in the evening. Six days later she agreed to take a drug test that ended up showing positive for Valium but negative for marijuana.

Termination

After first suspending Bartolotta, then conducting an investigation that revealed concerns of several other employees, and obtaining the drug test, the school terminated Bartolotta. The school concluded that Bartolotta signed and was aware of the drug-free policy, and violated that policy by showing for work in an impaired state, which she admitted in an interview. The school noted that Bartolotta did not disclose her medical marijuana use until an incident occurred and never requested an accommodation.

In terminating her, the school explained that her firing was not because of her epilepsy or her medical marijuana user status but for showing up to work in an impaired state. Bartolotta said at the time that she understood the reason.

After the school’s grievance committee and board of directors both upheld her termination as proper, Bartolotta filed an employment discrimination complaint with the Commission on Human Rights and Opportunities. In her accompanying affidavit, Bartolotta alleged that her employer “terminated her employment because of her disability” and “failed to accommodate her by prohibiting her from working while taking prescription medication for her disability.” The commission issued a release of jurisdiction over her complaint.

After that, Bartolotta sued Human Resources of New Britain, alleging violations of the state’s fair employment practices and medical malpractice laws, including unfair discrimination and wrongful termination because of her epilepsy disability and her status as a medical marijuana user, and illegal drug testing. A trial court found she had no case and awarded her employer summary judgment.

Now the appellate court has upheld the dismissal of her suit and the actions of her employer.

Clams Denied

Bartolotta had signed an acknowledgment of the school’s drug free workplace policy. In her deposition testimony, she admitted that she was aware that her employment could be terminated if she came to work impaired. But in her deposition she maintained that she was not impaired when the incident occurred on January 2, and that taking medical marijuana “does not make her impaired.” She further averred that the results of the drug test conducted six days after the January 2 incident proved that she didn’t come to work impaired.

In dismissing her complaint, the appellate court stressed that the state’s medical marijuana law contains language making clear that it shall not restrict an “employer’s ability to prohibit the use of intoxicating substances during work hours or restrict an employer’s ability to discipline an employee for being under the influence of intoxicating substances during work hours.”

The appellate court noted that the written disciplinary notice issued by school stated that, during an interview on January 8, Bartolotta admitted that she uses medical marijuana, did show up to work impaired, and she may be abusing it. In addition, during multiple phone calls with the school’s human resources director, she did not deny showing up to work impaired.

Noting that the employer’s notice concluded that her employment was being terminated because she “failed to follow company policy and procedures” regarding drug and alcohol use in the workplace, the court dismissed her claims that she was fired because of her disability or her medical marijuana use for lack of evidence.

‘Bald Assertion’

Bartolotta’s complaint stated that “terminating an employee for using medication for a disability is the equivalent of terminating an employee because of her disability.” However, the court found she provided “no legal authority for that bald assertion, which runs contrary to the plain language” of the law. Bartolotta also failed to provide any legal authority to support the proposition that she should have been allowed to use her medical marijuana during the workday or to appear at the preschool facility in an impaired state.

The court found that the school’s denial of Bartolotta’s requested accommodation regarding holding the Valium was reasonable, and that neither Bartolotta nor her doctor ever requested an accommodation for her medical marijuana use. In addition, the court said it is unclear what – if any – accommodation the school could make “short of allowing her to appear impaired in the workplace.”

Finally, the court found that in light of reports by other employees of her behavior and her own admission of showing up to work impaired, Human Resources of New Britain had the requisite “reasonable suspicion” under the state law to request a drug test.