Medical Marijuana Card Holder Can Sue Employer For Violations of the DMMA

medical_marijuanaThe Delaware Medical Marijuana Act (“DMMA”) provides broad protection to medical marijuana cardholders.  Unlike most states, the DMMA does not allow employers to maintain and enforce zero-tolerance policies against medical marijuana use.  While employers elsewhere can terminate any employee who fails a drug test, the DMMA prohibits a Delaware employer from terminating a cardholder unless it can show that the cardholder possessed or used the drug at work or was impaired on the job.

Jeremiah Chance worked at Kraft Heinz in Dover, Delaware.  According to his complaint, he was terminated when he failed a drug test for marijuana in violation of the DMMA.  Kraft Heinz tried to get Chance’s lawsuit thrown out on several grounds.

Kraft Heinz first argued that the DMMA did not permit an employee to even bring such a suit.  The Delaware Superior Court rejected this argument.

While the DMMA establishes broad protections for cardholders in the workplace, it does not expressly spell out if or how a cardholder can enforce them. Relying on court decisions from Connecticut and Rhode Island addressing a similar argument, the Court ruled that a so-called private right of action for employees could be implied to exist.  As a result, cardholders can sue their employer for DMMA violations. The Court reasoned that the Delaware General Assembly, in passing the DMMA, sought to protect cardholders from discrimination based on their cardholder status or marijuana use and failing to allow cardholders to sue would leave with no way to remedy such discrimination.

Kraft Heinz also sought to void Chance’s suit by claiming that the protections provided under the DMMA were trumped by conflicting federal laws under a legal doctrine called preemption. This argument was rejected as well.

The treatment of marijuana under the DMMA is, of course, quite different from how it is handled under federal law. Under the federal Controlled Substances Act (“CSA”), marijuana, like heroin, is classified as a “Schedule I” drug because it supposedly has “no currently accepted medical use” and a “high potential for abuse.”  The CSA makes it “…. unlawful to manufacture, distribute, dispense, or possess” marijuana except in the narrowest of circumstances.

The Delaware Superior Court began by noting that the DMMA and CSA, “at first glance,” seemed to be at odds, but a more careful review revealed no conflict between the two.  It said that while the CSA makes marijuana a Schedule I substance, it does not prohibit an employer from employing someone who uses marijuana.  Further, the DMMA does not require an employer to participate in activity made illegal by the CSA, but merely prohibits discrimination against medical marijuana cardholders.

This is the first major court decision involving the DMMA.  It makes clear that the DMMA is here to stay and that cardholders can sue to enforce the rights it provides. Employers should make sure that they are familiar with its requirements prior to any employment action taken against a cardholder.