Conn. Appellate Court Affirms Limits of Medical Marijuana Law in the Workplace

By: Andrew B. F. Carnabuci

The Appellate Court recently issued an opinion in the case of Bartolotta v. Human Resources Agency of New Britain, AC46091.  Employers should take note of this decision, as it affects how employers may act in response to suspected and actual drug use in the workplace.

The plaintiff in this case, Alyssa Bartolotta, was hired in 2018 as a preschool teaching assistant by the City of New Britain, to staff one of its daycare centers.  Plaintiff worked in classes with approximately 20 children at a time.  At the time of her hire, plaintiff was given a copy of the employee handbook.  The policies in the handbook included policies mandating a drug-and-alcohol free workplace and penalize being at work intoxicated and/or under-the-influence.  Plaintiff testified in her deposition that she was aware of Defendant's drug-free workplace policies.

Plaintiff suffered from epilepsy her whole life and suffered approximately one “bad” seizure per month.  Defendant became aware of this when Plaintiff had an epileptic seizure in the workplace.  Thereafter, a special medical protocol was given to the nurse on duty, and Plaintiff was allowed to leave her duties for the day as needed whenever she felt a seizure coming on.  Plaintiff was also transferred to another classroom where another adult teacher or staff member would be present to assist if she had another seizure.

Shortly thereafter, in October of 2018, Plaintiff provided Defendant with a doctor's note.  The note indicated that Plaintiff's seizures required treatment with diazepam (Valium) and requested that Defendant's nurse keep Plaintiff's diazepam prescription and administer it if needed.  Plaintiff testified that she viewed this note as a request for the reasonable accommodation of the nurse holding a few doses of her medication in a safe and administering it if she had an epileptic seizure.  Defendant's personnel testified that the nurse was only on duty two days a week, and that administering medication to the staff was outside of the scope of her employment duties with Defendant.  Plaintiff was told that she could keep her own diazepam prescription on her person at work for seizures, but that Defendant could not be the custodian of the medication.

On January 2, 2019, an incident occurred at Plaintiff's workplace.  Another teacher observed Plaintiff call someone by the wrong name.  Upon inquiry, Plaintiff stated that she was a user of palliative medical marijuana, and that her “head was just not right from it.”

In response, Defendant began an investigation of the incident and Plaintiff's marijuana use.  During the course of the investigation, Plaintiff produced her medical marijuana card for the first time and admitted that she used “too much” marijuana on the day in question.  Plaintiff also stated that she understood that she could not show up at work impaired, because it posed a danger to the young children in her workplace.  Plaintiff was suspended for six days and ordered to submit to drug testing.  Plaintiff's drug test came back negative for marijuana but positive for diazepam.  Several days later, Plaintiff provided Defendant with a letter from her physician stating that she was prescribed medical marijuana for her epilepsy.

On January 23, 2019, Defendant met with Plaintiff and terminated her employment.  Defendant stated that Plaintiff had admitted to being under the influence in the workplace, and it had serious concerns regarding her abuse of marijuana.  Plaintiff grieved her termination, and the grievance was denied.  Plaintiff appealed the grievance to Defendant's board of directors, which upheld the termination. 

Plaintiff then filed a charge of unlawful discrimination with the Connecticut Commission on Human Rights and Opportunities (“CHRO”), alleging disability discrimination, failure to accommodate.  A release of jurisdiction followed shortly thereafter, and on July 16, 2020, Plaintiff filed a lawsuit in Superior Court, alleging disability discrimination in violation of the Connecticut Fair Employment Practices Act (“CFEPA”), violation of Conn. Gen. Stat § 21a-408p (Connecticut's medical marijuana statute), and Conn. Gen. Stat. § 31-51x.

Defendant filed for summary judgment in the case.  It argued that Plaintiff could not establish a prima facie case of discrimination under McDonnell Douglas burden-shifting, that it reasonably accommodated all of her requests for accommodation, that she was not terminated because of her use of palliative marijuana, and that some of her claims were time-barred.  The court (Reed, J.) granted summary judgment with respect to all counts.  Plaintiff then appealed.

The Appellate Court began by considering the wrongful termination in violation of Conn. Gen. Stat. § 21a-408p claim.  The court upheld the grant of summary judgment with respect to this claim.  The court noted that § 21a-408p uses the language “solely on the basis of such…employee's status as a qualifying [medical marijuana] patient,” and that Defendant's investigative/disciplinary apparatus went into motion after she used the incorrect name in the classroom, and before she presented her medical marijuana card.  The court also noted that the palliative marijuana statute itself states that nothing in it should be construed as a bar on disciplining employees who are under the influence at work.

Next the Appellate Court affirmed the grant of summary judgment with respect to Plaintiff's disability discrimination claim.  The court noted that Plaintiff quibbled with the lower court's application of McDonnell Douglas analysis and urged the court to consider mixed-motive analysis, but held that the question was moot since Plaintiff could not meet her initial burden under either analysis.  The court explained that a plaintiff's burden under the initial step of mixed-motive analysis is “identical” to a plaintiff's burden to prove pretext under McDonnell Douglas analysis, and that Plaintiff could point to no evidence on which a reasonable jury could find for her in either case.

The court then addressed Plaintiff's failure to accommodate claim.  The court upheld the grant of summary judgment with respect to this claim as well, since Plaintiff's disability was reasonably accommodated, and to the extent that it was not, the failure to accommodate claims were time-barred.  The court held that Plaintiff's request that the nurse hold and administer her diazepam was unreasonable, since administering medication to staff was outside of the scope of the nurse's employment, and Defendant stated at the time that Plaintiff was allowed to carry and administer her own prescription.  The court also noted that since this claim was not filed within the 180-day window for discrimination claims, it was also time-barred.  The court also upheld the grant of summary judgment with respect to events that occurred within the 180-day window.  Plaintiff characterized the note from her physician as a request for an accommodation that was denied, however the court held that the note does not request any specific accommodation, it simply stated that Plaintiff was prescribed medical marijuana.  The court reiterated that § 21a-408p expressly states that it does not prohibit employers from disciplining employees who are under the influence during the workday.

Finally, the Appellate Court considered and upheld the lower court's grant of summary judgment with respect to her § 31-51x claim.  Section 31-51x bars employers from requiring that their employees submit to drug testing absent a reasonable suspicion that the employee is impaired in the workplace.

The Appellate Court considered the question of what constituted “reasonable suspicion” and noted that the Connecticut Supreme Court has explained that § 31-51x was intended to provide the same protections for Connecticut employees as federal employees enjoy under the Fourth Amendment.  The Appellate Court therefore harmonized the “reasonable suspicion” standard under § 31-51x with the “reasonable and articulable suspicion” standard that governs, inter alia, Terry stops under the Fourth Amendment.  The court then held that based on Plaintiff's own admission that she was impaired in the workplace, Defendant had reasonable suspicion of illicit drug use to require that Plaintiff submit to drug testing.

Summary judgment as to all four counts was affirmed, as there was no error.

Employers should pay particular attention to this decision, as it clarifies the standards for both wrongful termination in violation of the palliative marijuana statute and drug testing under § 31-51x.  Specifically, employers should take note that wrongful termination on the basis of palliative marijuana use is subject to “but-for” causation, due to the statute's use of the word “solely.”  Employers should also take note that the standard for when they may require employee drug testing has been held to be the same “reasonable and articulable suspicion” standard long employed in Fourth Amendment jurisprudence.

The bottom line: None of Connecticut's statutes permitting medical (or recreational) marijuana use prohibit an employer from disciplining employees who are under the influence at work.  Employers remain permitted to require drug-free workplaces.

Should employers have any doubts or concerns related to drug use or testing in the workplace, they should consult with seasoned employment counsel before taking any steps that might potentially expose them to liability.  The employment lawyers are Rose Kallor are always available to help employer navigate the fraught waters of employee workplace drug and alcohol issues.  We can be reached at 860.361.7999 or at www.rosekallor.com

About Rose Kallor:

Rose Kallor, LLP is a labor and employment law firm with offices in Hartford, Connecticut and New York, New York. Rose Kallor concentrates its practice in the representation of public and private-sector employers, individuals, and municipalities in the New England and New York Metropolitan area. Committed to high-quality, professional representation, the attorneys at Rose Kallor stand ready to provide legal counsel on all aspects of employment and labor law. For more about Rose Kallor, visit our website at https://www.rosekallor.com/.