by Matthew H. Parker
In a May 23 decision involving an issue of first impression (i.e., the court was tasked with deciding the issue for the first time), Associate Justice Richard Licht of the Rhode Island Superior Court struck down an employer’s preemployment drug-screening requirement as it was applied to an active user of medical marijuana and concluded that Rhode Island’s Edward O’Hawkins and Thomas C. Slater Medical Marijuana Act (the Medical Marijuana Act) requires employers to accommodate the use of medicinal marijuana outside the workplace and permits individuals to bring a private claim against employers that refuse to do so.
A ‘doobie’-ous applicant
In June 2014, Christine Callaghan applied for a summer internship at Darlington Fabrics Corporation. During the hiring process, Callaghan signed a “Fitness for Duty Statement,” which acknowledged that she would need to complete a preemployment drug test. As she signed the statement, she disclosed to the company that she is a medical marijuana cardholder. Subsequently, she confirmed that she would test positive for marijuana on any screening.
Darlington told Callaghan that a positive test result would violate its “Alcohol and Drug Use Policy” and that it would prevent the company from hiring her. After Callaghan indicated her intent to continue using marijuana, Darlington withdrew her job offer.
In November 2014, Callaghan filed a three-count complaint against Darlington. With the support of the American Civil Liberties Union, she sought (1) a declaratory judgment that Darlington’s failure to hire her constituted a violation of the Medical Marijuana Act, (2) damages under the Rhode Island Civil Rights Act (RICRA) for alleged disability discrimination, and (3) damages for Darlington’s alleged violation of the Medical Marijuana Act. In response, Darlington sought dismissal of all three claims.
Darlington argued that the Medical Marijuana Act does not contain a private claim for employment discrimination, the Medical Marijuana Act’s language prohibiting discrimination against medical marijuana cardholders does not prohibit the neutral application of a preemployment drug test to active users of medical marijuana, and the Medical Marijuana Act is preempted by the federal Controlled Substances Act (CSA). Darlington also contended that Callaghan’s RICRA claim failed because the use of a federally proscribed drug does not constitute a “disability.”
Callaghan pursued a motion for summary judgment (a request for a ruling in her favor without a trial) on her claims under the Medical Marijuana Act, arguing that the Act does contain a private claim for employment discrimination, its language prohibiting discrimination against medical marijuana cardholders prohibits the neutral application of a preemployment drug test to active users of medical marijuana, and it is not preempted by the CSA.
In a published decision scrutinizing the text of both laws, the court held in favor of Callaghan on her motion for summary judgment on the Medical Marijuana Act claims.
Medical marijuana user can sue her employer
Approximately 10 years ago, the Medical Marijuana Act went into effect and for the first time allowed certain patients to register with the Rhode Island Department of Health to obtain cards identifying them to law enforcement as being allowed to possess limited amounts of marijuana without violating state law. The provision relevant to Callaghan’s claims was Section 21-28.6-4(d) of the statute, which states (in pertinent part): “No . . . employer . . . may refuse to . . . employ . . . or otherwise penalize, a person solely for his or her status as a cardholder.” Noting that nothing in the statute specifies how that is to be enforced and that the law lacks any provision stating what the remedy is for a violation, Darlington argued that Callaghan’s claims under the Medical Marijuana Act failed.
The Rhode Island Supreme Court has long held that courts should not infer private claims into statutes when their plain text does not include them. Pointing to a conflicting canon of statutory construction holding that courts should not construe legislation to be pointless, Judge Licht held that the Medical Marijuana Act must provide a private claim because otherwise, Section 21-28.6-4(d) would be null. Unlike other statutes, which allow for government but not private enforcement, the Medical Marijuana Act includes no enforcement mechanism for Section 21-28.6-4(d) whatsoever. Concluding that Darlington’s argument would render Section 21-28.6-4(d) meaningless, Judge Licht held that the statute allowed Callaghan to sue Darlington directly.
Drug-screening policies must exempt medical marijuana users
Having decided that Callaghan could sue Darlington, the court next reviewed the meaning of the prohibition on refusing to employ a person “solely for her status as a cardholder.” Darlington argued that it would have refused to employ Callaghan regardless of her status as a cardholder. It did not hire her because she could not pass a preemployment drug test that screened out all active marijuana users. The court decided that the Medical Marijuana Act prohibits an employer from refusing to hire a person solely for her medical marijuana use, as long as she is a medical marijuana cardholder. Therefore, employers may not screen out applicants who fail a drug test because of marijuana use, as long as they are cardholders.
Darlington further argued that as a manufacturing facility, it had serious safety concerns about being required to hire a known active marijuana user. In particular, Darlington was concerned that an employee may use marijuana shortly before work or during a lunch break and report to work under the influence. There is currently no established way to tell when an individual is impaired by marijuana. Unlike alcohol, for example, no standard chemical test to measure marijuana impairment exists. No matter, the court found that “what an employee does on his or her off time does not impose any responsibility on the employer.”
CSA not controlling
Darlington’s final argument against the application of the Medical Marijuana Act to its hiring policies was that under the CSA, marijuana remains a Schedule I drug—a substance that has a high potential for abuse, no currently accepted medical use, and no way to be used safely, even under medical supervision. Darlington argued that the CSA preempts (blocks) the Medical Marijuana Act’s provision that would otherwise affirmatively require it to hire a marijuana user.
The court disagreed again, finding that the CSA’s purpose was “quite distant from the realm of employment and anti-discrimination law.” The court decided that the purpose of the CSA would not be frustrated by requiring an employer to hire a person who is actively violating federal law.
Cardholders are ‘disabled’ under RICRA
Darlington’s response to Callaghan’s RICRA claim fared no better. Darlington argued that since RICRA’s definition of the term “disability” incorporates by reference the term’s definition under the Americans with Disabilities Act (ADA), which expressly excludes individuals currently engaged in the illegal use of drugs, Callaghan’s use of marijuana—still illegal under federal law—disqualified her.
Judge Licht rejected Darlington’s defense to Callaghan’s RICRA claim based on a separate definition for the term “disability,” which also covers “a physical or mental impairment that substantially limits one or more . . . major life activities.” Because the Medical Marijuana Act required Callaghan to have a “debilitating medical condition” to obtain a medical marijuana card in the first place, Judge Licht concluded that was enough to qualify her as a disabled individual. He concluded that her cardholder status signaled to Darlington that she has a disability; thus, its unwillingness to make an exception to its drug-free workplace policy rendered the policy discriminatory against medical marijuana cardholders as a class.
Next stop, RI Supreme Court
Darlington has expressed its intention to appeal the lower court’s decision. Therefore, the Supreme Court of Rhode Island likely will have the final say on the validity of Callaghan’s claims. In the meantime, however, Rhode Island employers should take notice of Judge Licht’s decision. Until this matter is resolved on appeal, it is unclear whether a uniformly enforced drug-free workplace policy will be a valid reason for failing to hire a medical marijuana cardholder, even if there is no way to ensure that she will not come to work under the influence.
To discuss this topic further with Matthew Parker, please contact him directly at 401-270-3262.