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Attention: Connecticut Medical Marijuana Order with possible impact(s) for your workplace testing program

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By:
Josephine Elizabeth Kenney, J.D., MBA –HR
Chief Global Compliance Officer
First Advantage

Review and Update:
Order On Cross Motions for Summary Judgment –
Connecticut Federal Court District of Connecticut

Order Summary for Review:

First:

What is a Cross Motion for Summary Judgment anyway?

Black’s Law Dictionary defines summary judgment as:

A judgment granted on a claim about which there is no genuine issue of material fact and upon which the movant is entitled to prevail as a matter of law. This procedural device allows the speedy disposition of a controversy without the need for trial. Fed. R. Civ. P. 56. Also termed summary disposition; judgment on the pleadings.

A Cross Motion for Summary judgment simply means that both the Plaintiff and the Defendant claimed that there was no genuine issue of material fact and that each of them were entitled to prevail in this case.

Note: Not to insult but to clarify legal language:
            A movant is one who makes a motion to the court.

Order Reviewed:

A Connecticut Federal Court recently decided Cross Motions for Summary Judgment in favor of the Plaintiff in a medical marijuana matter involving Connecticut’s medical marijuana law.  Noffsinger v. SSC Niantic Operating Co., LLC. D/b/a Bride Brook Health and Rehab. Ctr., 2018 U.S. Dist. LEXIS 150453 (D. Conn. Sept. 5, 2018).

On September 5, 2018, in its Order on Cross Motions for Summary Judgment, United States District Judge Jeffrey Alker Meyer held that SSC Niantic Operating Company, LLC d/b/a Bride Brook Health & Rehabilitation Center had discriminated against the plaintiff, Katelin Noffsinger in violation of the Connecticut Palliative Use of Marijuana Act (PUMA), Conn. Gen. Stat. Section 21a-408 et seq. This decision is subject to appeal.

As the Court notes in its Order:

PUMA prescribes qualifying conditions for a person to use marijuana for medical purposes. It also contains an anti-discrimination provision that bars an employer from refusing to hire a person or from discharging, penalizing or threatening an employee solely because of the person’s status as a qualifying medical marijuana patient under state law. See Conn. Gen. Stat. Section 21a-408p (b) (s).

This matter involved a contingent offer of employment made to the plaintiff, Katelin Noffsinger, and the rescission of that offer by Bride Brook Health & Rehabilitation Center after her drug test came back positive. The Court granted Summary Judgment in favor of the Plaintiff on her PUMA discrimination claim. However, Defendant’s request on attorney’s fees and punitive damages for Plaintiff’s PUMA claim and for the negligent infliction of emotional distress were both granted.  The issue of compensatory damages remains outstanding, and joint trial memorandums are to be filed by both parties on this

This is a decision that could have an impact for all employers, especially, but not limited to, those employers doing business in Connecticut and it, therefore, may be appropriate to review this Order with your legal counsel to determine whether and how it may impact your organization.

Additional comments:

Please note that the Judge in this matter also explained this Order procedurally on page 5 of the Order as follows:

The principles governing the Court’s review of a motion for summary judgment are well established. Summary judgment may be granted only if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). I must view the facts in the light most favorable to the party who opposes the motion for summary judgment and then decide if those facts would be enough—if eventually proved at trial—to allow a reasonable jury to decide the case in favor of the opposing party. My role at summary judgment is not to judge the credibility of witnesses or to resolve close contested issues but solely to decide if there are enough facts that remain in dispute to warrant a trial. See generally Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam); Pollard v. New York Methodist Hosp., 861 F.3d 374, 378 (2d Cir. 2017).

This Order requires careful reading in the context of your organization’s workplace drug testing program considering your organization’s legal risk mitigation strategy. There is some interesting reasoning in the Order that requires study by your legal counsel. Please also note that this Order is about medical marijuana, not prescribed marijuana such as Marinol. This is important to note because the Plaintiff represented that she was taking Marinol, but it turned out that she was taking pills obtained from a medical marijuana dispensary. This is an important nuance because the outcome of this Summary Judgment arguably could have been reasoned differently if the Plaintiff was taking prescribed Marinol. How differently is challenging to speculate.

Resources/Credits:
This blog is an expansion of a Substance Abuse Program Administrator’s Association (SAPAA) Member Advisory primarily written by Josephine Elizabeth Kenney in her role as Co-Chair of the SAPAA Government Relations Committee. The SAPAA Member Advisory reflected contributions from Co-Chair Donna Smith, PhD, Committee Member Robert Schoening and SAPAA Committee Government Relations Committee Members as well as a SAPAA Member Attorney Faye Caldwell.

The foregoing information is not offered as legal advice but is instead offered for informational purposes.  First Advantage is not a law firm and does not offer legal advice.  The information is therefore not intended as a substitute for the legal advice of an attorney knowledgeable of the user’s individual circumstances. First Advantage makes no assurances regarding the accuracy, completeness, currency or utility of the following information.  Legislative, regulatory and case law developments regularly impact on general research.