PA Medical Marijuana Act Requires “But For” Causation to Succeed on Discrimination Claim, Federal Judge Says

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As we shared in past blog posts, the Pennsylvania Medical Marijuana Act (“MMA”) contains an anti-discrimination provision, that prohibits employers from discriminating against an employee “solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.”  Earlier this year, we also shared that the Superior Court confirmed that this provision created a cause of action, whereby an employee can sue an employer for discrimination in violation of the MMA.  However, a big question remained – what would an employee have to prove to demonstrate such a violation?  On October 19th, a Federal Judge answered that question.  An employee must demonstrate that but for his status as a certified medical marijuana cardholder he would not have suffered an adverse employment action.  Reynolds v. Willert Mfg. Co., Inc., 2021 U.S. Dist. LEXIS 200800 (E.D. Pa. October 19, 2021).

In Reynolds, the employee received a conditional job offer to work for Willert Manufacturing as a Maintenance Tech.  One of the conditions of the offer was successful competition of a drug test.  At no point during his interview or upon learning of the drug testing requirement, did the employee notify the employer of his status as a certified medical marijuana cardholder. While the employee claimed to have notified various testing center employees about his status, there was no record it was conveyed to the employer. The employer was notified of a failed drug test and terminated the employee in accordance with its policy. After he received the termination letter, the employee told the employer he was certified to use medical marijuana.  In essence, the employer said “too bad” and maintained the termination.  Employee filed suit, arguing that his termination violated the anti-discrimination provision in the MMA.

In granting summary judgment for the employer and dismissing the suit, the Court noted that the MMA prohibits only discrimination that is based exclusively on the individual’s status as a certified cardholder. Accordingly, to prevail on a cause of action under the MMA, the employee must demonstrate (1) they were discriminated against on the basis of their status as a cardholder and (2) that, but-for their status as a cardholder, they would not have suffered an adverse employment action.  Because the employee in Reynolds could not satisfy the but-for test, the Court dismissed the suit.

In holding that a but-for test applies, the Court noted the different language utilized by the Pennsylvania legislature in the Pennsylvania Human Relations Act (“PHRA”) compared to the MMA. The PHRA prohibits discrimination because of certain protected characteristics. Conversely, the MMA prohibits discrimination solely on the basis of cardholder status. This critical distinction renders the typical motivating factor analysis inapplicable to a claim under the MMA, as the discrimination must be based exclusively upon the cardholder status.  The Court noted that it is not enough for an employee’s certification status to be a factor – it has to be the factor.  In Reynolds, the employee could not satisfy his burden, because the employer was unaware of his certification status when it made the decision to terminate.  The Court held that when an employer is unaware of an employee’s cardholder status, it cannot possibly base a termination decision upon the employee’s status as a medical marijuana cardholder.

As the law around medical marijuana and the workplace continues to evolve, employers are encouraged to proceed with caution and to consult legal counsel when navigating employment discussions that impact applicants or employees who are certified to use medical marijuana.  Should you have questions in this regarding, please contact Denise Elliott, Esq. or another member of the McNees Labor and Employment Group.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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