At the same time the Legislature made medicinal marijuana legal in Connecticut, it also passed a statute that addressed the use of medicinal marijuana by employees.  That statute, § 21a-408p, provides that:

• No employer may refuse to hire or may discharge, penalize, or threaten an employee solely on the basis of their palliative use of marijuana.
• Employers may, however, prohibit the use of intoxicating substances during work hours.
• Employers may also discipline an employee for being under the influence of intoxicating substances during work hours.

Although the Legislature prohibited adverse employment actions based solely on the palliative use of marijuana outside of work hours, the Legislature did not explicitly state in that statute that employees suffering such an adverse employment action could bring a lawsuit against the employer.  Nevertheless, after failing to be hired based on failed pre-employment drug tests, two plaintiffs brought separate lawsuits against the State and a private sector employer based on § 21a–408p(b)(3).  Recent developments in these cases outline the legal defenses available to such lawsuits for the State and for private sector employers.

Sovereign immunity protects the State from lawsuits by medicinal marijuana users.

The doctrine of sovereign immunity generally protects the State from being sued, as well as from being held liable for damages in lawsuits.  Where sovereign immunity applies, the State must consent to be sued in order for a plaintiff to pursue a monetary claim against it.  This can happen in two ways: The Legislature may waive the State’s sovereign immunity to all lawsuits within a statute, or when there is no such waiver a particular plaintiff may petition the Claims Commissioner to pursue his or her own lawsuit against the State.  In a recent state court lawsuit, a plaintiff alleged that she was offered a job by the State, which was then withdrawn after she failed a pre-employment drug test due to her use of medicinal marijuana.  The State moved to dismiss based on sovereign immunity, and in June 2018 a Superior Court judge found that the Legislature did not explicitly or implicitly waive the State’s immunity to suit in § 21a–408p(b)(3).  Therefore, the court granted the State’s motion to dismiss the lawsuit, finding that any such claims must go through the Claims Commissioner process. This ruling presents a significant hurdle to any plaintiff who intends to sue the State under § 21a–408p(b)(3).

Private sector employers must defend lawsuits from medicinal marijuana users on the merits.

The doctrine of sovereign immunity is not applicable to private sector employers.  In one lawsuit currently pending in federal court, the private sector employer therefore attempted to dismiss the lawsuit on several alternative grounds, including an argument that § 21a–408p(b)(3) did not provide for an explicit or implicit private right of action.  The District Court judge rejected that argument, finding that, without a private right of action, the statute would have no practical effect.  The case therefore went through the discovery phase, and both parties moved for summary judgment.  The Court heard oral argument on those motions in January 2018.  A ruling is expected from the court soon, which will be the first ruling from a court that addresses a private sector employer’s ability to make decisions based on failed pre-employment drug tests and their potential liability under § 21a–408p(b)(3).