Employee terminated after using medical marijuana in violation of “last chance” agreement is entitled to unemployment benefits



United States

The claimant was employed by the plaintiff as a firefighter beginning in 1995. On November 23, 2015, as a result of his issues with alcohol abuse and domestic violence, the claimant entered into a “last chance” agreement with the plaintiff and his union stating that he may be subject to immediate termination if he tested positive for a controlled substance. Subsequently, the claimant was prescribed and began lawfully using medical marijuana in compliance with the terms of the Palliative Use of Marijuana Act (“PUMA”). The claimant's employment was terminated for testing positive for marijuana, a controlled substance, in violation of the “last chance” agreement and other employer policies.

The claimant’s claim for unemployment benefits was initially denied. On Appeal, the Board of Review of the Employment Security Appeals Division (the “Board”) held that the defendant was eligible for unemployment benefits because he was not discharged for wilful misconduct, even though he tested positive for marijuana use in violation of the last chance agreement (at 2).


The plaintiff appealed the Board’s decision, arguing that the Board erroneously concluded that the claimant was not discharged for wilful misconduct. In City of Waterbury v. Adm'r, Unemployment Comp. Act, No. AC 44635 (Conn. App. 2022), the Connecticut Court of Appeals affirmed the Board’s decision.

Wilful misconduct requires a knowing violation of a reasonable rule or policy

The Connecticut Court of Appeals noted that an individual is ineligible for unemployment benefits if their discharge resulted from wilful misconduct. The statutory definition of "wilful misconduct" includes a "knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied, provided such violation is not a result of the employee's incompetence." The plaintiff argued that even though the claimant's use of marijuana was not a violation of state law under PUMA, the claimant breached the last chance agreement and that such violation constituted willful misconduct (at 7).

An agreement may not prohibit legal behaviors in a manner that is contrary to state law

The Connecticut Court of Appeals held that while an agreement between an employer and an employee can reasonably prohibit certain, otherwise legal behaviors, it cannot reasonably do so in a way that runs contrary to state law. 

In this case, the claimant was a qualifying patient entitled to protections under PUMA, which entailed protection against employment penalties resulting from the claimant's legal, off-duty use of medical marijuana. Therefore, the Connecticut Court of Appeals held that the Board had reasonably concluded that the “last chance” agreement, insofar as it operated to allow the plaintiff to terminate the claimant's employment for his palliative use of marijuana, was unreasonable (at 8).

December 20, 2022
City of Waterbury v. Adm'r, Unemployment Comp. Act, No. AC 44635 (Conn. App. 2022)
Author: Carli Kadish
Connecticut Courts