Delaware Court Confirms State Medical Marijuana Law Not Preempted by Federal Law

Written By ESR News Blog Editor Thomas Ahearn

On December 17, 2018, a Delaware state court in the case of Chance v. Kraft Heinz Foods Company upheld an employment claim brought by medical marijuana user and confirmed that the federal Controlled Substances Act (CSA) does not preempt the Delaware Medical Marijuana Act (DMMA).

Delaware Medical Marijuana Law

Plaintiff Jeremiah Chance – who obtained a medical marijuana card under the DMMA in 2016 – was asked to take a drug test by his employer, the defendant Kraft Heinz, after an accident at work. Kraft Heinz terminated Chance for failing the drug test even though he told them he possessed a medical marijuana card.

Chance sued Kraft Heinz, claiming the food and beverage company wrongfully terminated him under a public policy protecting medical marijuana users, violated the DMMA’s anti-discrimination provisions, and discriminated against him under the Americans with Disabilities Act (ADA) and state disability law.

Kraft Heinz filed a motion to dismiss the DMMA claims by Chance by arguing the state DMMA is preempted by the federal CSA – which prohibits the use and sale of marijuana – and also moved to dismiss the wrongful termination claim because the DMMA does not provide any public policy grounds for relief.

The court held the DMMA does not conflict with the CSA since the DMMA prohibits employers from disciplining employees for medical marijuana use unless the person “used, possessed, or was impaired by marijuana on the premises of the place of employment or during the hours of employment.”

The court concluded the CSA – although it classifies marijuana as a prohibited substance and does not make any exceptions for medical marijuana use – does not make it illegal for an employer to employ a medical marijuana user or “regulate employment matters within this context.”

The court also held that while the DMMA does not expressly provide a cause of action, an implied private right of action exists under the statute’s anti-discrimination prohibition and concluded that a private cause of action is the “only means of effectuating the statute’s remedial purpose.”

However, the court dismissed the wrongful termination and ADA and state disability claims by Chance, noting the public policy against discrimination toward medical marijuana users does not address a “systemic social problem” that makes it appropriate for a victim to bring a wrongful termination claim.

In April of 2017, ESR News reported that employers were questioning if they should stop drug testing for marijuana now that many states have legalized it for medicinal or recreational purposes and acceptance has spread, according to an article from the Society for Human Resource Management (SHRM).

The SHRM article explained that marijuana “remains illegal under federal law, and employers have the right to test for it, even in states where the substance is legal. Not only does federal law conflict with some states’ laws, but state laws also vary, sometimes significantly, challenging multistate employers.”

As of 2018, 33 states and the District of Columbia have approved medical marijuana programs, according to the National Conference of State Legislatures (NCLS). Some states have also passed laws allowing recreational use of marijuana by adults, even though marijuana is still illegal under federal law.

For employers that are mandated to do drug testing or choose to drug test, the national trend towards legalization of marijuana for medicinal and recreational purposes will be a critical workplace issue that will require attention, especially given state marijuana laws can conflict with federal marijuana laws.

ESR Helps Marijuana Dispensaries with Background Checks

Employment Screening Resources® (ESR) – a leading global background check firm – helps marijuana dispensaries to identify the types of background checks that are suitable for them based local and state laws. To learn more, visit

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