Tag: Connecticut

Connecticut Requires Reasonable Accommodation for Pregnant Employees

Bernard E. Jacques

On October 1, 2017 an “Act Concerning Pregnant Women in the Workplace” went into effect in Connecticut.  It has been illegal to discriminate against employees on the basis of pregnancy under both federal and Connecticut law.  However, generally under federal and to a lesser degree under Connecticut law, an employer was not required to make an accommodation for a pregnant employee.  As one court described the law: “employers can treat pregnant women as badly as they treat similarly affected but non-pregnant employees.”

That is no longer the law in Connecticut.  Now Connecticut employers are obligated “to make a reasonable accommodation for an employee or a person seeking employment due to pregnancy, unless the employer can demonstrate that such accommodation would impose an undue hardship on such employer.”  Pregnancy includes “childbirth or a related condition, including but not limited to lactation.”

A reasonable accommodation includes “being permitted to sit while working, more frequent or longer breaks, periodic rest, assistance with manual labor, job restructuring, light duty assignments, modified work schedules, temporary transfers to less strenuous or hazardous work, time off to recover from childbirth or break time and appropriate facilities for expressing breast milk.”

A Connecticut employer will be required to make these accommodations unless making them would require “significant difficulty or expense.”

The requirement to provide a reasonable accommodation to pregnant employees extends to employers with three or more employees.

In addition, employers are required to notify employees of the new law (i) at the time of hire; (ii) within ten days of learning that an employee is pregnant; and (iii) for all present employees before December 31. This requirement to notify employees may be met with by displaying a poster “in a conspicuous place, accessible to employees at the employer’s place of business” in English and Spanish.

The Connecticut Department of Labor has prepared a poster and employers can obtain the poster by visiting the Department’s web site.

If you have any questions about this or any other Connecticut employment issue, please contact Bernard E. Jacques (bjacques@mdmc-law.com).

Connecticut Medical Marijuana Law Protecting Employees is Upheld

Bernard E. Jacques

In enacting its medical marijuana law, Connecticut added a provision barring employers from taking adverse employment actions against a “qualifying patient” because of the patient’s use of medical marijuana.  Questions were raised as to whether the Connecticut statute was preempted by federal law, which still makes it a federal crime to use, possess or distribute marijuana.  In a case of first impression, Noffsinger v. SSC Niantic Operating Company, LLC, U.S. District Court Judge Meyer held that the Connecticut statute was not preempted, and an employee could sue for discrimination based on the employee’s use of medical marijuana.

Katelin Noffsinger was diagnosed with post-traumatic stress disorder (“PTSD”) in 2012, and in 2015 her doctors recommended medical marijuana to treat her condition.  Ms. Noffsinger complied with the statute and registered with the Connecticut Department of Consumer Protection as a “qualifying patient.”  She began taking one capsule of Marinol, a synthetic form of marijuana, on a daily basis. At the time she began taking the medical marijuana, she was working a recreational therapist at a long term care facility.

In July 2016 Ms. Noffsinger was recruited for a recreation therapy director position at a skilled nursing facility.  After an initial phone interview, she had a personal interview with the director of the facility, who offered her the job. Ms. Noffsinger accepted and began filling out the pre-employment paperwork.  At the insistence of her new employer, she gave notice to her then-current employer.

When completing her pre-employment forms, Ms. Noffsinger revealed that she was a “qualifying patient” using medical marijuana in accordance with the Connecticut statute.  She showed her new employer her registration card with the Department of Consumer Protection, and told her that she took Marinol in the evening before going to bed. She offered to provide additional medical documentation. Her new employer did not ask for any additional information.

As part of her pre-employment process, Ms. Noffsinger submitted a urine sample. Before she started working, her new employer contacted her and told her that she had failed the drug test. She had tested positive for cannabis.  Ms. Noffsinger tried to return to her former job, but it already had been filled. She filed an action against her employer for discriminating against her because of her use of medical marijuana.

Her employer moved to dismiss her claim and argued that Connecticut’s medical marijuana statute was preempted by federal law, which makes it a federal crime to use, possess, or distribute marijuana.  Federal law provides no exception for medical use.  But the court noted that Ms. Noffsinger sought to enforce only that part of the Connecticut statute which prohibits employment discrimination against authorized medicinal marijuana users.  The federal law neither makes it illegal to employ marijuana user, nor does it regulate employment practices.  And the Connecticut statute does not protect use of marijuana on the employer’s property or its use during work hours.  Therefore, the court concluded, the Connecticut medical marijuana law is not preempted by federal criminal drug laws.

Nor is the Connecticut medical marijuana law preempted by the Americans With Disabilities Act (“ADA”). The employer argued that ADA explicitly states the current drug users are not protected.  But the court saw no conflict between the ADA, which does not protect current drug users, and the Connecticut statute, which does protect a “qualifying patient.”

Although the court’s decision upholding the Connecticut Medical Marijuana law is not binding on any other court, it is likely to be persuasive and employers ignoring the protections afforded a “qualifying patient” using medical marijuana will assume a significant risk.

However, the Connecticut Medical Marijuana law does not protect employees whose positions are regulated by federal law or regulation.  Employees, whose positions are deemed safety sensitive under the U.S. Department of Transportation regulations are still required to comply with those regulations regarding drug use and drug testing.  For those employees a positive marijuana test can result in loss of a job.

If you have any questions regarding this or any other issue of Connecticut employment law, please contact Bernard E. Jacques (bjacques@mdmc-law.com).