Medical Marijuana in the Workplace, Part 4: Recent Cases Add No Clarity to the Law
The Legal Intelligencer
(by John McCreary)
This is the latest installment of the author’s obsessive examination of Pennsylvania’s Medical Marijuana Act (MMA) and the employment law issues it creates. By this point in our examination, it is now established, at least in the trial courts of the Commonwealth, that the MMA created a private cause of action for medical marijuana users claiming that an employer has discriminated against them because of their medical marijuana use. See e.g., Judge William J. Nealon’s comprehensive opinion in Palmiter v. Commonwealth Health Systems, No. 19-CV-1315, 2019 Pa. Dist. & Cnty. Dec. LEXIS 12307 (Lackawanna Cty. 2019); Hudnell v. Thomas Jefferson University Hospitals, Inc., 2020 U.S. Dist. LEXIS 176198; 2020 WL 5749924 (E.D. Pa. 2020)(citing Palmiter). See 35 P.S. § 10231.2103(b)(“No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee … solely on the basis of such employee’s status as an individual who is certified to use medical marijuana …”)(emphasis supplied).
In a surprising development (at least to the author), however, Commonwealth Court construed the emphasized language in a manner favorable to employers who continue to enforce “zero tolerance” and similar drug policies. In Harrisburg Area Community College v. PHRC, 245 A.3d 283 (Pa.Cmwlth. 2020) (HACC) a nursing student with a valid medical marijuana prescription was expelled from the nursing program after testing positive for marijuana metabolites. She brought a claim before the Pennsylvania Human Relations Commission (PHRC) for disability discrimination against HACC under the Pennsylvania Human Relations Act’s (PHRA) public accommodation provisions, claiming that her medical marijuana use did not impact her ability to complete the nursing coursework and that HACC should be required to reasonably accommodate her by permitting her to use medical marijuana to treat symptoms of her underlying disabilities (post-traumatic stress disorder and irritable bowel syndrome). HACC filed a motion to dismiss before the PHRC, contending that the definition of “disability” under the PHRA precluded the use of medical marijuana even when such use was permitted under the MMA. See 43 Pa.C.S.A. §954(3)(p.1)(3)((p.1)(“The term “handicap or disability,” with respect to a person, means: … (3) being regarded as having such an impairment, but such term does not include current, illegal use of or addiction to a controlled substance, as defined in section 102 of the Controlled Substances Act ( Public Law 91-513 , 21 U.S.C. § 802)”). PHRC denied the motion and HACC appealed.
After a thorough examination of both the PHRA and the MMA, Commonwealth Court found “unpersuasive” PHRC’s argument that the legalization of medical marijuana in Pennsylvania via the MMA required accommodation under the PHRA, primarily because of the definition of disability excluded use of marijuana. The Court further observed that:
[E]ven as to employers/employees, which is not the case at hand, the MMA only prohibits discrimination against an employee because of his or her status as a certified user under section 2103(b)(1), 35 P.S. § 10231.2103(b)(1). While employers are prohibited from discriminating or retaliating against individuals based on their status as certified users of medical marijuana, section 2103(b)(2) of the MMA provides that employers are not required to provide an accommodation to employees on their premises, nor are employers prohibited from disciplining employees who are under the influence of medical marijuana on work premises:
(2) Nothing in this act shall require an employer to make any accommodation of the use of medical marijuana on the property or premises of any place of employment. This act shall in no way limit an employer’s ability to discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted for that position.
35 P.S. § 10231.2103(b)(2) (emphasis added).
245 A.3d at 291-292 (emphases in original).
The surprising aspect of the decision is the Court’s statement that the MMA protects only the status of certified user, not actual marijuana use itself pursuant to that status. The author earlier remarked on the General Assembly’s idiosyncratic choice of this language in the first installment of this series (The Legal Intelligencer, February 9, 2017 online edition) and noted in the second installment (The Legal Intelligencer, March 21, 2019 online edition) how courts elsewhere had rejected this constrained reading of virtually identical language. See, e.g., Noffsinger v. SSC Niantic, 338 F.Supp.3d 78, 84-85 (D.Conn. 2018)(“Under defendant’s restrictive interpretation of the statute, employers would be free to fire status-qualifying patients based on their actual use of medical marijuana—the very purpose for which a patient has sought and obtained a qualifying status. That makes no sense …”). The third installment (The Legal Intelligencer, September 20, 2020 online edition) surveyed caselaw from other jurisdictions holding in similar manner.
The HACC Court’s construction of the MMA is contrary to at least one earlier Pennsylvania trial court decision. In Laidacker v. Berwick Offray, LLC, No. 726 of 2019, 2020 WL 3410881 (Columbia Cty., January 2, 2020) the court rejected the “status vs. use” distinction:
In our case, defendant’s argument [that only status is protected, not actual use] is equally incredulous. The whole purpose of the PMMA is to provide protection to a qualifying cardholder against employment-related discrimination. The language in the statute specifically states: “No employer may discharge, refuse to hire or otherwise discriminate….”
… If this court assumes defendant’s interpretation of the statute, the protections afforded under the statute would be meaningless, and every medical marijuana patient could be screened out by a facially neutral drug test.
2020 WL 3410881 at *5 (footnotes omitted). HACC seemingly holds that the “meaningless protections” decried by the Laidacker court are all that the MMA requires. The author is not convinced that this is correct.
Because of the weight of authority elsewhere and Supreme Court’s admonition that the MMA is to be liberally construed, Gass v. 52nd Judicial District Lebanon County, ___ Pa. ___, 232 A.3d 706 (2020), it is unlikely that Commonwealth Court’s Harrisburg Area Community College decision is the last word on this issue. The author remains uncertain about what and who is protected by the ambiguous antidiscrimination provisions of the MMA. Moreover, because HACC was not an employment case its whole analysis of the MMA’s employment law provisions may be dictum and therefore non-precedential. Further clarity awaits additional decisions from Superior Court and ultimately from the Pennsylvania Supreme Court, which once and for all can tell us whether the Act protects actual use of medical marijuana, or only the status of being a medical marijuana patient. The author, therefore, is confident that there will be a fifth installment of this series and is gratified that, for the moment at least, his original interpretation of the statute has been vindicated and plausibly may be argued in defense of claims of employment discrimination brought under the MMA.
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Reprinted with permission from the August 12, 2021 edition of The Legal Intelligencer© 2021 ALM Media Properties, LLC. All rights reserved.