What Do You Think: Could Discharged Employee Sue under Medical Marijuana Act?

Frank Ferreri

Scranton, PA (WorkersCompensation.com) — The legal status of “medical marijuana” remains in flux, as courts and administrative bodies continue to work out just how “legal” it is.

Such is the case in Pennsylvania, where — in an issue of first impression — an appellate court last week had to decide whether the commonwealth’s law on medical marijuana allowed an employee to sue her employer when it terminated her after she failed a drug test.

A medical assistant for a health system appeared for an employment-related drug test and informed the laboratory that she was prescribed medical marijuana. She also faxed a copy of her medical marijuana certification to the lab.

Following the test, the assistant received a call from the health system advising her that she could no longer work there based upon her drug test.

The assistant sued the system, alleging that it violated Pennsylvania’s Medical Marijuana Act. The trial court rejected the system’s preliminary objection to the lawsuit, prompting the system to seek review in the appeals court on the basis that the case involved a controlling question of law with a substantial ground for difference of opinion.

The appeal went forward, with the system presenting the issue of whether the Medical Marijuana Act allowed the assistant to sue the system.

Under the act, employers may not “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.”

The act authorizes Pennsylvania’s Department of Health to impose fines for violations and also allows the for “any other remedy available to the Department.”

To determine whether a law provides for a cause of action, Pennsylvania courts look to whether there is an indication of legislative intent to create or deny a remedy in the law.

Did the assistant have a lawsuit against the system for letting her go after the drug test?

A. Yes. The Medical Marijuana Act would be rendered meaningless if an employee who lost her job for marijuana use despite having a certification could not seek damages.

B. No. The Medical Marijuana Act grants the Department of Health the exclusive authority to enforce the act and seek remedies in the form of fining violators.

If you chose A, you agreed with the court in Palmiter v. Commonwealth Health Systems Inc., No. 498 MDA 2020 (Pa. Super. Ct. 08/10/21), which rejected the system’s argument that the act conferred exclusive jurisdiction over enforcement of the relevant section to the Department of Health.

Additionally, the court noted that while the act “did not expressly create a private right of action on behalf of an employee whose employer discriminates against her for medical marijuana use, it proclaimed a public policy prohibiting such discrimination.”

The court also noted that the law provided rights for employers, namely that an employer was not required to provide an accommodation for certified medical marijuana users and that employers could discipline employees who are under the influence of medical marijuana at work.

“Thus, in the employment context, [the act] not only delineates the rights afforded employees who are certified users, but also sets forth the rights of employers to discipline employees who are in violation of the terms of certified use.”

In finding in the employee’s favor, the court highlighted that public policy weighed in her favor.

“The enactment of [the act] reflects a public policy designed to protect certified users of medical marijuana from employment discrimination and termination,” the court wrote. “In this context, medical marijuana is most properly viewed as a prescription drug.”

This feature does not provide legal advice.

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