A Pennsylvania appellate court's decision last month established that workers now have a private right to sue employers for alleged discrimination under Pennsylvania’s Medical Marijuana Law.
For school entities, the August 10 ruling by the Pennsylvania Superior Court in Palmiter v. Commonwealth Health Sys., Inc. is particularly important because the number of school employees and potential employees who use medical marijuana has expanded greatly in the past year. As a result, school entities in Pennsylvania will need to address this issue more often.
Pennsylvania’s Medical Marijuana Act includes two provisions related to employment that would be applicable to most school employees:
- 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.
- 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.
The mere fact that an employee or potential employee uses medical marijuana outside of work or holds a medical marijuana card – unless there is evidence to suggest they are under the influence of marijuana while at work – would generally not permit the employer to take any type of adverse employment action.
Under the Act, any such adverse action could raise concerns that the employer is acting solely on the basis that the worker is a medical marijuana card holder, which is clearly prohibited by the statute.
Cases in Pennsylvania and Beyond
In Palmiter, an employee was discharged solely for testing positive for marijuana with no other evidence of impairment or use of marijuana. The Lackawanna County Court of Common Pleas found the plaintiff’s claim sufficient to state a viable cause of action for discharge in violation of public policy. Under similar laws in other states, reliance on nothing more than a positive drug test to establish someone is under the influence of marijuana has been found to be in violation of the protections afforded to medical marijuana users. See Noffsinger v. SSC Niantic Operating Co. LLC, 273 F. Supp. 3d 326, 330 (D. Conn. 2017); Whitmire v. Wal-Mart Stores Inc., 359 F. Supp. 3d 761, 791 (D. Ariz. 2019).
Several cases beyond Pennsylvania cases that have applied similar statutes are instructive. First, several cases have found that a zero-tolerance policy that fails to provide any exception for legal medical marijuana use would be inconsistent with the employment protections afforded under similar medical marijuana statutes or disability discrimination statutes. SeeNoffsinger v. SSC Niantic Operating Company LLC, 273 F.Supp.3d 326, 330 (D. Conn. 2017).
At least one case has found that while employers can prohibit use during work and being under the influence of medical marijuana while at work, because of how long some of the compounds in medical marijuana stay in the system, a positive drug test without more may not be sufficient evidence of use or being under the influence at work and went so far as to suggest that the only manner in which a drug test would be sufficient is with scientific evidence that the test could show impairment. Whitmire v. Wal-Mart Stores Inc., 359 F. Supp. 3d 761, 790 (D. Ariz. 2019).
Finally, some cases have indicated that the employer must go through the interactive process to determine if other accommodations can be used to address the concerns. See Barbuto v. Advanced Sales and Marketing, Inc., 78 N.E.3d 37 (Mass. 2017). As part of that process, employees should be reminded that district policy prohibits the employee from using or being under the influence of medical marijuana when at work or preforming work related duties, that failing to comply with such requirements can lead to discipline, and may wish to request a copy of the employee’s medical marijuana card to establish that the employee’s use of marijuana is for medical purposes under the statute.
Intersection With Federal Law
In Pennsylvania, the Medical Marijuana Act also provides that an employer is not required to do anything that would violate federal law. 35 Pa. Stat. Ann. § 10231.2103(b)(3). However, similar provisions in other states have been found not to permit an employer to use this exception on the basis that federal grants contain provisions related to a drug-free workplace or merely the fact that federal law makes this a crime. Noffsinger v. SSC Niantic Operating Co. LLC, 273 F. Supp. 3d 326, 330 (D. Conn. 2017); Chance v. Kraft Heinz Foods Co., No. CV K18C-01-056 NEP, 2018 WL 6655670, at *4 (Del. Super. Ct. Dec. 17, 2018).
However, under federal law, operators of commercial motor vehicles are prohibited from driving a commercial motor vehicle if they test positive for a controlled substance, which includes marijuana. 49 CFR § 382.215; 49 CFR § 382.107; 49 CFR § 40.85. Pennsylvania has incorporated into the definition of commercial motor vehicle a vehicle with more than 15 passengers, including the driver, or a school bus, which would make such drivers subject to this limitation. 67 Pa. Code § 231.8(1); Menge v. Reed, 84 Cal. App. 4th 1134 (Cal. Ct. of App. 2000). As a result, while the Medical Marijuana Act may not provide an exception for many workers in schools, it would not offer protections to school bus drivers or drivers of vans that had more than 15 people as permitting an exception to the requirement to have a negative drug testing would be a violation of federal law.
As issues continue to arise in this new area of the law, schools should proceed cautiously, and it is recommended that school entities work with their labor or employment counsel to address this issue.
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