Are Medical Marijuana Users Protected by the Pennsylvania Human Relations Act?

By Denise Elliott & Ursula Siverling on March 3, 2021

POSTED IN EMPLOYER LIABILITY, WORKPLACE TRENDS

The answer to this question is . . . it depends.  Based on three recent court decisions, whether the Pennsylvania Human Relations Act (“PHRA”) protects medical marijuana (“MMJ”) users from discrimination on the basis of their current use of MMJ appears to depend on the specific accommodation requested by the user.  We summarize these key decisions and provide important take-aways for Pennsylvania employers below.

Harrisburg Area Community College v. Pennsylvania Human Relations Commission, (Pa. Commw. Ct., October 29, 2020)

In the HACC case, a nursing student (“Swope”) alleged that she suffered from PTSD and irritable bowel syndrome and that, with accommodation, she could meet the requirements of HACC’s nursing program.  The accommodation Swope requested was, “being permitted to take her legally prescribed medical marijuana.”  HACC required nursing students to submit to an annual drug test.  Anyone who tested positive would be removed from the program.  When HACC refused to waive the policy, Swope filed claims under the PHRA, alleging that HACC failed to accommodate her disability.

HACC moved for dismissal, arguing that the definition of “disability” in the PHRA excludes current users of “controlled substances.”  The PHRA references the federal definition of controlled substance.  Under federal law, marijuana is an illegal controlled substance.  HACC noted that the legislature did not amend the PHRA either via the Pennsylvania Medical Marijuana Act (“MMA”) or after passing the MMA and, therefore, despite legalization for medicinal use in Pennsylvania, the PHRA does not require accommodation of medicinal marijuana use.  The Pennsylvania Human Relations Commission (“PHRC”), which took up the case on Swope’s behalf, argued that Swope’s use of marijuana was legal under Pennsylvania law and, therefore, she should be protected by the PHRA.

Ultimately, the Commonwealth Court agreed with HACC, holding that the PHRA’s definition of disability did not include current use of a controlled substance as defined by federal law.  Highlighting the provisions in the MMA discussing use of medical marijuana by employees, the Court also held that the accommodation requested by Swope – continued use of medical marijuana – was not reasonable. First, the Court noted that the MMA provides that “employers are not required to provide an accommodation for use of medical marijuana to employees on [the employer’s] premises.”  Second, the Court discussed the safety sensitive carve out in the MMA, noting that “users of medical marijuana may be prohibited by an employer from performing any duty which could result in a public health or safety risk while under the influence of medical marijuana.”  According to the Court, allowing a nurse to work while under the influence of medical marijuana could result in a public health or safety risk.  Although the case did not involve an employment relationship, in citing these provisions of the MMA, the Court signaled that the same outcome could apply to employees.

Note – The PHRC applied for reargument, which the Court denied.  The PHRC did not appeal.

Palmiter v. Commonwealth Hospital Systems, Inc., (Pa. C.C.P. Lackawanna Cty, November 10, 2020)

We discussed the facts of the Palmiter case in 2019, as it was the first court decision in Pennsylvania to address the discrimination clause in the MMA.  In a second decision in the case, the court addressed Palmiter’s claim that her termination constituted disability discrimination in violation of the PHRA.   In the analysis of Palmiter’s PHRA disability claim, the Court noted that Palmiter did not plead that her underlying medical conditions were disabilities.  Rather, she asserted that her use of medical marijuana was a protected disability under the PHRA.  Consistent with the Commonwealth Court’s decision in the HACC case, the Court held that, based upon principles of statutory construction, the current use of medical marijuana under the MMA does not constitute a protected “disability” under the PHRA. Consequently, her claims under the PHRA for disability discrimination, failure to accommodate and retaliation failed.  Palmiter subsequently filed an appeal from the dismissal of her PHRA claims, which is currently pending before the Superior Court of Pennsylvania, leaving open the question of whether the Superior Court will give deference to the Commonwealth Court’s holding in HACC.

Hudnell v. Thomas Jefferson Univ. Hosps., Inc., (U.S. Dist. Ct., E.D. Pa., January 7, 2021).

A federal court decision earlier this year distinguished both HACC and Palmiter.

We discussed the facts of Hudnell last year when the court, referencing the first Palmiter decision, upheld a private right of action under the MMA’s discrimination provision.  Earlier this year, the court addressed Hudnell’s claims that her employer violated the PHRA by failing to accommodate her disability and terminating her in retaliation for requesting accommodation.  Citing Palmiter and HACC, the Hospital moved for dismissal arguing that Hudnell failed to plead a valid disability under the PHRA due to her marijuana use.  Judge Pappert disagreed.

Judge Pappert distinguished Palmiter, noting that Palmiter alleged that her legal use of medical marijuana qualified as a disability under the PHRA.  Hudnell, however, alleged that her disabilities included a herniated disk and related spinal injuries and that she requested accommodation for such disabilities.  Further, Hudnell alleged that she requested several accommodations, in addition to the accommodation of her medical marijuana use and that the hospital previously provided accommodation for her disabilities, but following her positive drug test, the Hospital failed to engage in the interactive process.  This allegation also allowed Judge Pappert to distinguish the HACC holding, which he noted held that HACC was not required to accommodate use of medical marijuana.  However, according to Judge Pappert, the Hospital had an obligation to engage in the interactive process with Hudnell to explore the reasonableness of other accommodations, which it apparently failed to do and thus her failure to accommodate claim could proceed.

Regarding Hudnell’s claim for retaliation, Judge Pappert once again distinguished her use of medical marijuana from her protected activity – her request for accommodation.  While she asked the Hospital to accept her legal use of marijuana, she asked for alternative accommodations as well.  Though he found the request for alternative accommodations significant, Judge Pappert also noted that a retaliation claim “[does] not require a plaintiff to provide he or she has an actual disability, rather, a plaintiff need only show that he or she requested an accommodation in good faith.”  Accordingly, it did not matter that Hudnell may not be an individual with a disability, because of her medical marijuana use.  She could nonetheless state a claim for retaliation.

Take-Aways for Employers

While the decisions in the above-three cases may appear to conflict, they actually provide helpful guidance and reminders for Pennsylvania employers.

First, regardless of whether the employee has a claim under the PHRA, the MMA creates a private right of action for any employee who believes he/she was discriminated against because of his/her status as a certified user of medical marijuana.  In the first decisions issued in Palmiter and Hudnell, the court allowed the plaintiff to proceed on a claim for discrimination in violation of the MMA.  Accordingly, employers must be mindful of the anti-discrimination language contained in the MMA and carefully consider how it plans to approach employee medical marijuana use.

Second, whether an employee can raise a claim under the PHRA will truly depend upon how the employee approaches the medical marijuana discussion with the employer and, subsequently, how the employee pleads his/her case.  The death knell in Palmiter was that Ms. Palmiter alleged that her use of medical marijuana qualified as a disability.  Conversely in Hudnell, the plaintiff sought accommodation for her underlying disability, of which her employer was aware and, indeed, previously accommodated.  In filing her claim, Hudnell then smartly argued that she was disabled by virtue of her medical condition and not due to her use of medical marijuana.  Accordingly, employers would be wise to remember that the myriad of conditions for which an individual may use medical marijuana, could qualify as disabilities and, as a best practice, should engage in the interactive process with any applicant or employee who seeks accommodation for these disabilities.

Finally, the accommodation requested by the employee is critical.  In both Palmiter and HACC, the requested accommodation was that the individual be allowed to continue using medical marijuana.  Specifically, in HACC, Swope asked HACC to waive its drug testing requirement and to place her into a clinical position despite the fact that she would continue using medical marijuana.  The holding of the HACC court, that such an accommodation is unreasonable, does not appear to have been disturbed by the court in Hudnell.  However, where an employee requests alternative accommodations or where alternative accommodations – again for the underlying disability – could be provided, the Hudnell decision tells us that the employer has an obligation to engage in the interactive process and consider the alternatives.  Employers should also be mindful of the potential for a retaliation claim when an employee makes any good faith request for an accommodation, even if the requested accommodation is not reasonable.  If the ultimate outcome is termination of employment, the employer should be prepared to provide a legitimate, non-retaliatory reason for the termination.

The bottom line is that the rights of employees who use medical marijuana remains somewhat unsettled.  A rigid “one size fits all” approach – i.e. a blanket zero tolerance policy –may result in a lawsuit.  Employers are cautioned to remember the interactive process, review and revise outdated policies now and, whenever questions arise, to consult counsel.

Should you have additional concerns about medical marijuana use by employees, wish to review or discuss your drug testing and drug free workplace policies or have specific questions, please reach out to Denise Elliott, Ursula Siverling or another member of the Labor and Employment Group.

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New Jersey Legalized Recreational Cannabis – What do Pennsylvania Employers Need to Know?

By Denise Elliott on March 1, 2021

POSTED IN WORKPLACE TRENDS

On February 22, 2021, New Jersey Governor Phil Murphy signed three bills that legalize the use of cannabis for those over the age of 21, decriminalize possession of less than six ounces of cannabis and establish civil penalties for use by anyone under age 21.  The bills are the enabling legislation following a constitutional amendment approved by voters in November.  Notably, because the right to use cannabis is now constitutionally protected in New Jersey, legislators were charged with balancing the constitutional right to use with other conflicting interests, such as those of employers who want to prohibit drug use in an effort to ensure a safe and accident-free workplace.

Effective immediately, it is legal to use and possess cannabis in New Jersey.  As a practical matter, however, unless you have a medical marijuana card, you cannot yet purchase cannabis in New Jersey.  Before the state’s cannabis marketplace can become operational, Governor Murphy must establish and appoint the members of the Cannabis Regulatory Commission (the “Commission”).  Once formed, the Commission has up to six months to set its rules and regulations.  Only thereafter, will it begin accepting applications for recreational dispensaries.  The Commission is also expected to set rules and regulations that clarify provisions in the law regarding cannabis use and employment.

In 2019, New Jersey passed regulations that provided employment protections for medical marijuana users.  We discussed the protections in a July 2019 Blog Post.  Now, with the legalization of recreational cannabis, New Jersey employees who choose to use cannabis have even more protection.

Under the new law, employers may not refuse to hire, discharge from employment, or take any other adverse action against an employee because the employee uses cannabis off duty.  While employers may continue to test for cannabis metabolites, employees cannot be subject to adverse action based solely on the presence of such metabolites in the testing specimen.  Further, the law sets forth the circumstances under which an employer may test for cannabis.  Employees can be tested if there is reasonable suspicion that an employee is using cannabis while working, if there are observable signs of intoxication or following a work-related accident subject to investigation by the employer.  Tests may also be performed randomly, as part of a pre-employment screening or as part of routine screening of current employees when the purpose is to determine use during an employee’s work hours.  However, the law goes onto state that the “test shall include scientifically reliable objective testing methods and procedures, such as testing of blood, urine, or saliva and a physical evaluation in order to determine an employee’s state of impairment.”  The required physical evaluation must be conducted by “an individual with the necessary certification to opine on the employee’s state of impairment, or lack thereof.”  If the test and evaluation demonstrate impairment, the employer may discipline or terminate the employee.

Regarding the physical examination and recognizing impairment in employees, the law contemplates that this will be conducted by a Workplace Impairment Recognition Expert (“WIRE”).  The Commission, which as noted above, is not yet formed, is tasked with prescribing the standards and curriculum for WIRE certification.  WIRE certification can be issued to full or part-time employees of the employer or to anyone contracted by the employer, who has been trained in detecting and identifying use and impairment from cannabis and other intoxicating substances.

Finally, some good news for employers in New Jersey, employers are not required to permit or accommodate the use, possession, display, sale, or growth of cannabis in the workplace or during working hours.  Employers can continue to prohibit employees from being intoxicated by or under the influence of cannabis at work or during work hours.  And, if complying with New Jersey law would place the employer in violation of a federal contract, the employer may follow federal law.

The employment provisions in the law govern the conduct of employers and employees in New Jersey.  Accordingly, employers with operations in New Jersey must be mindful of the new protections afforded to employees who may choose to use marijuana.  Policies should make clear that  bringing marijuana onto company property is prohibited, using marijuana on company property and during work hours is prohibited and that employees may not come to work/may not work while intoxicated.  Employees subject to federal regulation or drug testing required by federal contract, should be reminded that federal law governs their conduct, and zero tolerance policies will continue to be enforced.  Finally, New Jersey employers should begin to identify the employees who will obtain WIRE certification.  In the meantime, drug testing for cannabis metabolites should be conducted only when there is reasonable suspicion of impairment or intoxication.

For Pennsylvania employers who employ residents of New Jersey, do not fret.  There is nothing in the law to suggest that protections apply to New Jersey residents who work in Pennsylvania.  While the employee may have the right to use recreational cannabis east of the Delaware River, recreational cannabis is not legal in Pennsylvania (yet).  Accordingly, Pennsylvania and federal law govern their employment in Pennsylvania.  Employers in Pennsylvania should continue to be mindful of the rights of medicinal marijuana users, but can continue to enforce zero tolerance and drug free workplace policies for all other employees.

Should you have additional concerns about changes to the law regarding marijuana use, wish to review or discuss training for your managers and Human Resources professionals, your drug testing and drug free workplace policies or have specific questions, please reach out to Denise Elliott, Ursula Siverling or another member of the Labor and Employment Group.

About Our Firm

McNees Wallace & Nurick LLC is a full-service law firm. The McNees Labor and Employment Group provides strategic representation and counseling to employers for a variety of matters, including all types of employment litigation, collective bargaining negotiations and labor arbitrations, occupational health and safety, affirmative action, unemployment compensation, workers’ compensation, wage and hour regulation, and employee benefits. McNees attorneys strive to partner with employers to develop proactive compliance strategies that help employers avoid costly litigation and other disputes.