The Smoke and Mirrors of PUMA

For those enduring chronic pain from a serious medical condition, the legalization of medical marijuana in Connecticut has been a blessing but for employers it has been nothing but an administrative headache and a trap for the unwary.  As many of you may know, the Palliative Use of Medical Marijuana Act (“PUMA”) was passed in October of 2012. It is an Act that not only legalizes the use of medical marijuana if you are a card carrier (note that becoming a card carrier does require the imprimatur of a health-care professional and certain other prerequisites like being a Connecticut resident and being over the age of 18 in most instances) but provides protection against employment discrimination if you are protected person under the statute, i.e., you have a Connecticut medical marijuana card and have followed all of the registration requirements of the statute.

There are many misconceptions about PUMA.  For example, PUMA is not the equivalent of the legalization of marijuana for recreational purposes.  PUMA only protects persons who have what the statute defines as a “debilitating medical condition.” Most of the listed “debilitating medical conditions” are uncontroversial, such as cancer, AIDS, MS, epilepsy, Crohn’s disease, cerebral palsy, cystic fibrosis and/or other terminal illnesses.  PTSD is also listed in the statute as a “debilitating medical condition” and some complain that diagnosing this particular condition is too subjective and therefore its addition to the list of qualifying conditions allows many individuals to obtain medical cards who may not be in the same chronic and pain-filled category as the others who qualify.  Be that as it may, PTSD is a “debilitating medical condition” under PUMA and therefore employers may have employees in their workforce who do not present obvious symptoms of a “debilitating medical condition” but may have a marijuana medical card nonetheless.

Another common misconception is that PUMA will open the floodgates for employees to come to work “high.”  Even if you are a protected person under the statute (under the statute, a protected person is called a “qualifying patient”), it expressly prohibits the use of medical marijuana in the workplace.  In addition, it also expressly states that it is not intended to prevent employers from prohibiting employees from being under the influence of intoxicating substances during work hours. If PUMA is working according to the terms of the statute, employees, if they use medical marijuana, do so in a manner that ensures that they are no longer under the influence by the time they return to work, i.e., employees are supposed to be administering medical marijuana during their “off hours.”

While it has taken a while for challenges to PUMA to work their way through the court system, there are noteworthy ones that have been addressed.  For example, those employers who accept federal money in the form of grants have tried and will continue to make the argument that the Federal Drug-Free Workplace Act, a presumed string attached to federal grant money, requires their employees to be drug free, i.e., free from all drugs including medical marijuana, even if they have a medical-marijuana card.  A well-regarded federal judge in Connecticut has rejected this challenge (though notably higher courts have yet to have the final say on the issue). Surely in the pipeline are employers, especially state and municipal employers, who will make the argument that there are certain employees with safety-sensitive and public-trust positions, such as truck drivers, firefighters and police, that should not be allowed to use medical marijuana.  We will see whether the safety-sensitive and public-trust position arguments meet with more success than the Federal Drug-Free Workplace Act argument.

For now, employers have to be aware that when an employee presents a medical marijuana card to his or her supervisor the employer cannot subsequently take an adverse employment action against that employee because of their status as a card carrier.  In a subsequent advisory, we will take up the issue as to what an employer should do if it believes that a card-carrying employee appears to be intoxicated while at work. Employers should also understand that someone who has a medical-marijuana card is likely to have a medical condition that constitutes a disability under both federal and Connecticut law.  As such, that employee may have three layers of protection – under PUMA, the American Disabilities Act and Connecticut’s Fair Employment Practices Act (i.e., Connecticut’s anti-discrimination statute that protects those with disabilities, along with other protected categories). Employers need to proceed with caution as to such employees.

 If you are an employee with a medical marijuana card, understand that PUMA provides you with protection only to the extent that your employer is aware that you have one.  On the other hand, if you follow the strictures of PUMA and administer medical marijuana to yourself only during non-work hours, perhaps your employer need never know of your status.  Whether you should tell your employer that you have a medical-marijuana card is an interesting question that an attorney can help you think through. 

There is no getting around the fact that PUMA presents many difficulties for employers and its protections for employees are anything but straightforward.  And all of the difficulties and lack of clarity described above will only be compounded if Connecticut follows the path of Massachusetts and legalizes the recreational use of marijuana.  Apparently, we were very close to that result during the last legislative session. Stay tuned ….        

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