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The Connecticut Appellate Court recently issued an important decision for employers ruling that employers may lawfully terminate employees who are impaired at work from using medical marijuana. The decision also provides helpful guidance on what facts will provide reasonable suspicion before an employer can require an employee to submit to urinalysis drug testing.
Carmody Torrance Sandak & Hennessey attorneys Tamara Nyce and Howard Levine represented the employer in this case, Bartolotta v. Human Resources of New Britain, Inc.
Summary of Factual Findings
Human Resources Agency of New Britain (“HRA”) hired the plaintiff as a teaching assistant in its early childhood division. HRA’s employee handbook included a drug free work policy, which strictly prohibited employees from working under the influence of illegal drugs or alcohol. The plaintiff signed an acknowledgment form confirming her receipt of the handbook and her responsibility to read and comply with HRA’s policies.
HRA first learned the plaintiff suffered from epilepsy after she had a seizure at work. In response, HRA developed a medical alert protocol specifically for her that documented seizure symptoms, protocols, and emergency contacts. HRA also provided the plaintiff other accommodations for her safety and the safety of students.
On January 2, 2019, a teacher observed the plaintiff call a child by the wrong name. The plaintiff told this teacher she was “just out of it,” that she used medical marijuana, and “her head is just not right from it yet.” Concerned, the teacher reported the incident to a supervisor. During HRA’s investigation, the plaintiff admitted she reported to work impaired and said the cause was taking too much marijuana.
HRA suspended the plaintiff without pay and directed her to submit to a drug test. The test was positive for Valium (a lawfully prescribed controlled substance), but negative for marijuana. When questioned about her marijuana use, the plaintiff for the first time presented her medical marijuana card and a letter from her physician stating she was prescribed marijuana to be taken each night for anxiety and seizures. The plaintiff believed the effects of her marijuana use each night would wear off by the time she reported for work.
During the investigation, another teacher reported that she observed the plaintiff to be “forgetful, droopy, and unsteady on her feet” prior to the incident. She also expressed concern regarding the safety of children in the plaintiff’s care. Yet another coworker reported that the plaintiff admitted to her the day after the incident that “she was on medical marijuana.”
HRA terminated the plaintiff’s employment on January 23, 2019 for reporting to work impaired and admitting that she could be abusing marijuana. HRA referenced its drug free workplace policy and its obligation to protect the children within its care.
The plaintiff filed a lawsuit claiming: (1) disability discrimination; (2) failure to accommodate her disability; (3) violation of the Connecticut Palliative Use of Marijuana Act (“PUMA”); and 4) that HRA conducted an unlawful drug test because it lacked reasonable suspicion to conduct test. The Appellate Court affirmed the trial court’s dismissal of the plaintiff’s claims.
The Court’s Decision
The Appellate Court noted that while PUMA prohibits employers from disciplining employees solely based on their status as a qualifying user of medical marijuana, it does not restrict an employer’s ability to discipline employees for being impaired during work hours. Rejecting the plaintiff’s claim that she was terminated solely on the basis of her use of medical marijuana, the Appellate Court noted: HRA initiated the investigation before the plaintiff disclosed that she used marijuana; the plaintiff understood that the investigation had nothing to do with her epilepsy, but rather concerned the dangers posed to children; the plaintiff was never told that she could not take marijuana to treat her epilepsy; and the plaintiff violated HRA’s drug free workplace policy by reporting to work impaired.
The Appellate Court also found that HRA had reasonable suspicion to require the plaintiff to submit to urinalysis drug testing based on concerns expressed by co-workers, and the plaintiff’s admission that she was impaired at work. It dismissed the disability discrimination claims finding no evidence that HRA discriminated against her due to her disability. The Appellate Court noted that HRA adopted various protocols to accommodate her disability and permitted her to possess and use Valium at work. The Appellate Court also mentioned that the plaintiff never requested an accommodation based on her use of medical marijuana.
Takeaways for Employers
The decision confirms that employers may take appropriate disciplinary action against employees who are impaired at work, even if the employee uses marijuana for medical purposes. It is important that employers have a clearly written drug free workplace policy prohibiting employees from being impaired at work and that the policy be distributed to all employees.
The policy should also indicate that employees may be required to submit to urinalysis drug testing where there is reasonable suspicion to believe the employee is impaired at work and should identify various factors the employer will consider in making this determination. Equally important is the employer being able to show that it has provided reasonable accommodations for an employee’s medical condition. Not only is this legally required, it helped HRA refute the plaintiff’s claims of disability discrimination, and that she was terminated from her employment solely because of her marijuana use.
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