Medical Marijuana Musings (Two Years Later)

By Denise Elliott on February 10, 2020

POSTED IN DISCRIMINATION & HARASSMENT, EMPLOYER LIABILITY, WORKPLACE TRENDS

Two years ago, the first medical marijuana dispensary opened in Pennsylvania.  Since that time, well over a hundred thousand Pennsylvania residents have become certified to use medical marijuana, additional conditions were added to the listed of qualifying serious health conditions and employers started to field questions from employees who wanted to use (or already were using) medical marijuana.  So, two years later, what do employer’s need to know?

1. There’s a new protected classification in PA – an individual who is certified to use medical marijuana

As we’ve discussed previously, the PA Medical Marijuana Act provides that “no employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.”  Act 16, §2103(b)(1).  The impact of this anti-discrimination provision, however, was unknown until late in 2019.  In late November, as an early Christmas gift to employees, Judge Nealon of the Court of Common Pleas of Lackawanna County, held that a medical marijuana patient could proceed with her lawsuit alleging discriminatory discharge by her former employer.

According to the complaint filed in Palmiter v. Commonwealth Health Systems, the plaintiff was denied continued employment when she could not pass a drug screen due to her off-duty use of medical marijuana.  Plaintiff filed suit in the Court of Common Pleas and alleged, among other things, that her discharge violated the anti-discrimination provision contained in Act 16.  The employer sought dismissal of the lawsuit, arguing that Act 16 did not create a private right of action for discriminatory discharge.  Judge Nealon, following the trend of decisions in Delaware, Rhode Island and Connecticut, among others, disagreed with the defendant.  According to Judge Nealon, neither the Department of Health nor any other state agency was vested with the authority to enforce the anti-discrimination provision.  Accordingly, if an employee could not pursue a private right of action in state court, section 2103(b)(1) would be rendered meaningless.

Note, in allowing the suit to proceed, Judge Nealon has not ruled on the merits of plaintiff’s discrimination claim.  Further, we do not yet know what types or levels of damages may be recoverable by a plaintiff who can prevail on such a discrimination claim.  Nonetheless, the impact of Judge Nealon’s decision should not be understated . . . employees who are certified to use medical marijuana are a protected class in Pennsylvania.  Any such employee who believes he/she was discharged, threatened, not hired, etc., because of his/her certification to use medical marijuana will be able to file a lawsuit, straight into state court, alleging discrimination.  As a result, employers would be wise to review and consider how employees who use medical marijuana outside of work will be treated.

2. The trend of court decisions is patient/employee friendly.

In ruling for the plaintiff in the Palmiter case, Judge Nealon followed the trend of judges in Delaware, Rhode Island, New Jersey, Connecticut, Massachusetts and Arizona, all of whom have ruled in favor of patients/employees certified under state law to use medical marijuana.  In Pennsylvania, in addition to Judge Nealon (who is a trial court judge), the appellate courts also appear poised and ready to protect the rights of medical marijuana users in the state.  In October, the ACLU filed an action on behalf of a class of Pennsylvania residents impacted by the Medical Marijuana Policy of the Lebanon County Court of Common Pleas.  The Court’s Policy prohibits the active use of medical marijuana by anyone under court supervision (i.e. those on probation or parole).  Though the suit was filed in the Commonwealth Court, on October 30th the Pennsylvania Supreme Court exercised its King’s Bench jurisdiction and voted to hear the case itself.  Notably, in doing so, the court temporarily enjoined enforcement of the Policy, a move seen as friendly to those seeking to legally use medical marijuana under Act 16.  The class of medical marijuana users opposing the Policy filed their brief with the Supreme Court last week and argued, among other things, that the Lebanon County Court’s Policy forces them to choose between seizures and jail and contradicts the critical purpose of Act 16 – to protect the rights of those who are certified to use medical marijuana from being arrested or prosecuted for using it.

While this case is not an employment related matter, PA employers should pay attention.  Should the Supreme Court permanently enjoin enforcement of the Policy, such a ruling will continue the trend of patient friendly decisions and could be predictive of how a court might rule in a dispute between an employer and an employee/medical marijuana user.

3. The list of qualifying serious health conditions expanded, and, chances are, you have employees who are using, or soon will be using, medical marijuana.

In 2019, two new conditions were added to the list of serious health conditions for which PA residents can obtain medical marijuana.  The first – Tourette’s Syndrome – wasn’t much of a game changer.  The second, however – Anxiety – caused many employers to sit up and take notice.  According to the Anxiety and Depression Association of America, anxiety disorders are the most common mental illness in the U.S., affecting 18.1% of the adult population.  Accordingly, if you do not yet have an employee who has disclosed his/her use of medical marijuana, with the addition of anxiety to the list of qualifying conditions, it is likely only a matter of time.  Thus, for employers there is no time like the present to review your drug testing policy and to consider how your organization will handle medical marijuana use by employees.