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San Francisco enacts Ban-The-Box ordinance for marijuana offenses

San Francisco is the latest to join a trend of authorities enacting ban-the-box legislation with an ordinance that supplements its “fair chance” law by, now, prohibiting employers from inquiring into marijuana use within California‘s marijuana-permissive law.

Source: San Francisco Ordinance No. 17-14.

State marijuana law not preempted by federal law, at least according to one federal trial court

In the first case of its kind, a federal district court held that Connecticut’s marijuana-permissive law is not preempted by federal law. The case arose when an employer refused to hire the plaintiff after she tested positive for marijuana that she’d been taking for PTSD (in its synthetic pill form, Marinol). Unlike most states’ marijuana-permissive laws, Connecticut’s prohibits employers from discriminating against individuals on the basis of their use of medical marijuana.

When the plaintiff sued, the employer argued that the anti-discrimination provisions in Connecticut’s marijuana-permissive law were preempted by federal law. Marijuana remains a controlled substance under federal law, specifically the Controlled Substances Act (“CSA”).

The federal court disagreed, strongly (parenthetical in original):

Defendant argues that because the CSA prohibits marijuana use, defendant would be violating federal law (and thus violating the federal nursing home regulations that require compliance with federal law) by hiring plaintiff. This argument borders on the absurd. Because the act of merely hiring a medical marijuana user does not itself constitute a violation of the CSA or any other federal, state, or local law, defendant is not exempt from § 21a-408p(b).

Will other courts follow the court’s decision? It seems inconsistent with at least one precedent, Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 230 P.3d 518 (Or. 2010), although the court distinguished that case, saying that, while Emerald Steel was “quite similar,” it raised a “very different question.”

Employers should learn whether the states, municipalities or other local authorities in which they employ workers have passed marijuana-permissive laws, like Connecticut’s, that either prohibit discrimination against or require reasonable accommodation of medical (or recreational) marijuana users. Employers in such states should be mindful whether Noffsinger suggests a need to comply with such state laws even though they believe such compliance is in tension with federal law. Currently at least eight states have such laws: Arizona, Connecticut, Delaware, Illinois, Maine, Nevada, New York and Minnesota.

In states like Colorado, where neither medical nor recreational marijuana laws prohibit such discrimination nor require such reasonable accommodation, Noffsinger would seem to have no impact. In Colorado in particular, the Colorado Supreme Court has already held employers may terminate marijuana users. See Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. 2015).

Source: Noffsinger v. SSC NIANTIC OPERATING COMPANY LLC, Dist. Court, D. Connecticut 2017 – Google Scholar