Delaware Court Holds Federal Law Does Not Preempt Employee Protections under State Medical Marijuana Law

The Superior Court of Delaware recently issued a decision confirming the state’s protections for medical marijuana users. On December 17, 2018, in Chance v. Kraft Heinz Foods Co., the court held that the federal Controlled Substances Act (CSA), which prohibits the use and sale of marijuana, does not preempt Delaware’s Medical Marijuana Act (DMMA). While the Chance decision is not unique—both Connecticut1 and Rhode Island2 have recently issued decisions that reached the same conclusion—the decision is noteworthy as Delaware is one of the few states that expressly prohibits the discipline or discharge of employees who use medical marijuana outside of work and subsequently test positive on a job-related drug test absent evidence of on-duty use/possession or impairment. The language of the DMMA was therefore arguably more susceptible to a challenge that a conflict existed between state and federal law. The decision is also the first to imply a private cause of action under DMMA’s employment anti-discrimination provision.