Over the past month, Pennsylvania courts have issued a series of decisions clarifying employee rights for medical cannabis patients—one related to unemployment compensation and others related to private rights of action under its medical cannabis statute. Most recently, in Pittsburgh Water and Sewer Authority v. Unemployment Compensation Board of Review, the Pennsylvania Commonwealth Court affirmed a decision by the Unemployment Compensation (“UC”) Board of Review finding that Terrance Suber, a former employee, was entitled to UC benefits following his termination in 2019 for a positive drug test. At the time of the test, Suber was lawfully using medical marijuana pursuant to the state’s Medical Marijuana Act ("MMA"). Additionally, both Pennsylvania state and federal courts have issued decisions regarding what type of claims a medical cannabis patient can assert, and under which statute those claims can be asserted.

In Pittsburgh Water and Sewer Authority, the Authority’s substance abuse policy stated that employees were permitted to use prescription medications, and rebut positive drug test results by verifying prescriptions for any medication that had triggered the tests. If they did, the medical review officer (“MRO”) in charge of the test results was supposed to report them as “negative.” In compliance with this policy, Suber presented a certification for lawful medical marijuana use under the MMA following his drug test. Notwithstanding his certification, the MRO reported a positive result to the Authority. Suber was terminated and filed a claim for UC benefits. The Authority opposed his claim.

The Scranton UC Service Center denied his claim under Section 402(e.1) of Pennsylvania’s Unemployment Compensation Law (the “Law”) which states that an employee is ineligible for UC benefits for any week “[i]n which his unemployment is due to discharge ... due to failure to . . . pass a drug test conducted pursuant to an employer's established substance abuse policy, provided that the drug test is not requested or implemented in violation of the law or of a collective bargaining agreement [ (CBA) ].” 43 P.S. § 802(e.1). Through a series of appeals, this matter ultimately reached the Pennsylvania Commonwealth Court.

The Court affirmed the Board’s decision, and found that Suber was not ineligible for UC benefits under Section 402(e.1) of the Law because the MRO did not act according to the Authority’s substance abuse policy. As discussed above, the policy stated that the MRO would report Suber’s drug test result as negative if he could verify his prescription within three days of his test. Although he did, the MRO reported the result as positive. Further, the Court wrote that the Law’s “remedial nature . . . to protect ‘employees who become unemployed through no fault of their own[]’ “ entitled Suber to UC benefits in this case. It was unpersuaded by the Authority’s argument that it discharged Suber because marijuana use is still illegal under federal law.

Suber is also proceeding with a civil suit under the MMA against the Authority based on its decision to terminate him for using medical marijuana. The Allegheny County Court of Common Pleas denied the Authority’s attempt to dismiss Suber’s claim for a violation of the public policy established by the MMA. The Authority filed an answer to Suber’s complaint on July 7, 2020.

Recently Pennsylvania has seen several lawsuits filed for employment related claims by medical cannabis patients, providing the state and federal courts with ample opportunity to weigh in on the MMA’s protections. The first case was Palmiter v. Commonwealth Health Systems, et al., filed shortly before Suber, which we wrote about here. In that matter, a Pennsylvania court held for the first time that the MMA creates a private cause of action for employees who are terminated for off-site medical marijuana use, and denied the defendants’ attempts to dismiss the plaintiff’s claims for violating the MMA statute and the public policy established by the MMA.

More recently, the United States District Court for the Eastern District of Pennsylvania weighed in on this issue as well. In Hudnell v. Thomas Jefferson Univ. Hospitals., Incorporated, the Eastern District of Pennsylvania denied the defendant’s motion to dismiss the plaintiff’s claim for violating the MMA statute when it discharged her for using medical marijuana. Like the Palmiter court, it too held that the MMA creates a private right of action for employees who are discharged for using medical marijuana. Following Palmiter, and other similar decisions, it determined that “the text of and the context of the [MMA] implicitly suggest legislative intent to create a private right of action.” The Hudnell court opined that the legislative intent could be inferred given that the statute did not create a “specific administrative enforcement mechanism” that would “bar a private right of action for Section 2103(b0(1).” It determined that the relevant section of the MMA was created to protect employees, noting that the section was crafted for the benefit of employees with medical marijuana cards to utilize the benefits of medical marijuana “without fear of adverse employment actions.” For these reasons, the Hudnell court permitted the plaintiff’s claim for violation of the MMA to proceed. It broke with the Palmiter and Suber decisions, however, by dismissing her claim for a public policy violation. It held that there was no clear indication from the Pennsylvania courts that discharge in violation of the MMA threatened a clear mandate of public policy, and Hudnell already had a statutory remedy available under the MMA.

Since the Hudnell court’s ruling, Hudnell filed an amended complaint, and the defendant moved to dismiss some of her claims. Specifically, the defendant moved to dismiss Hudnell’s failure to accommodate and retaliation claims that were brought under the Pennsylvania Human Relations Act (“PHRA”), leaving intact the MMA claims that survived its previous motion to dismiss. The defendant based its motion on two recent Pennsylvania state court rulings: Harrisburg Area Cmty. Coll. v. Pa. Human Rels. Comm’n (“Harrisburg”) and a subsequent ruling in Palmiter (Palmiter II), in which the courts held that medical cannabis use under the MMA does not constitute a protected disability under the PHRA. In Harrisburg, the court noted that the PHRA incorporates the federal Controlled Substances Act which defines marijuana as a Schedule I controlled substance, and excludes illegal drug use from its definition of handicap or disability. The court, in finding that the PHRA does not require a nursing school to accommodate a student’s medical marijuana use, concluded that “the fact that the MMA explicitly amended the Pennsylvania Drug Act, but did not specifically amend [the] PHRA . . ., can only be interpreted as meaning the General Assembly did not intend to amend [the] PHRA.” The Palmiter II court, after discussing the Harrisburg decision at length, reached the same conclusion as that of Harrisburg. The defendant’s motion to dismiss is currently pending before the District Court.

Pennsylvania has now joined courts in other jurisdictions allowing claims to proceed against employers by employees who use medical cannabis under a state authorizing statute. However, so far Pennsylvania courts have limited those claims to the MMA, and not permitted employment related claims under the PHRA. Employers should continue to monitor the expanding authorization of medical cannabis across the country and review their drug-testing policies and procedures with counsel for compliance with state statutes and recent court decisions. If an employee advises he or she uses medical cannabis, would fail a drug test, or refuses to take a drug test, employers should consult with counsel before taking action.