Employer obligations to consider the use of medical marijuana as a reasonable accommodation just got murkier with a new case out of Delaware, Chance v. Kraft Heinz Foods Co., decided in December 2018.

The employee was a Yard Equipment Operator for Kraft Heinz. Unbeknownst to Kraft Heinz, the employee obtained a medical marijuana card for various medical issues. In August 2016, the employee alerted Kraft Heinz to unsafe conditions in the railroad yard. That same day, the employee was operating a shuttle wagon on the railroad tracks when it derailed. As you might expect, Kraft Heinz requested the employee undergo a drug test, which revealed the presence of marijuana. The employee informed the medical review officer he had a valid medical marijuana card, but Kraft Heinz terminated the employee in late August 2016.

Of course, marijuana remains an illegal Schedule I substance under the federal Controlled Substances Act (“CSA”), so Kraft Heinz argued that federal law is in conflict with the Delaware Medical Marijuana Law (“DMMA”).  Expressly following in the footsteps of courts in Connecticut and Rhode Island, the court concluded that because the CSA does not make it illegal to employ someone who uses marijuana nor does it regulate employment matters, the state law (DMMA, in this case) and CSA can both apply.

Next, the court considered whether the DMMA gave an employee the ability to bring a lawsuit even though the DMMA was silent on this point. The court noted that Delaware is one of only nine states whose medical marijuana law expressly prohibits the failure to hire, discipline or discharge an employee who uses medical marijuana outside of work and tests positive on a drug test. (The other states with such laws are Connecticut, Rhode Island, Arizona, Illinois, Maine, Nevada, New York, and Minnesota.)

Relying again on the Rhode Island decision, Callaghan v. Darlington Fabrics Corp.the court concluded that because the DMMA has a specific anti-discrimination provision, the Delaware legislature must have intended to permit the employee to sue under the DMMA.

What the ruling means is the employee will be allowed to move forward with discrimination claims arising out of Delaware’s medical marijuana statute. Up until several years ago, courts had generally found that employers were not required to accommodate medical marijuana use under state law because marijuana is illegal under federal law. This position, however, is no longer necessarily the case. Employers with operations in Delaware and other states with marijuana laws should carefully consider the language of these laws and whether they may impact employment.