The Lackawanna Court of Common Pleas in Pennsylvania held, in a matter of first impression, that language in the state’s Medical Marijuana Act ("MMA") creates a private right of action for an employee that is terminated for off-site use of medical marijuana. In Palmiter v. Commonwealth Health Systems, et al. , the court decided that although that statute does not expressly provide a private right of action, its explicit language that “[n]o employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee solely on the basis of [their] status as an individual who is certified to use medical marijuana,” implicitly creates one. The decision is non-binding. It is, however, the first of its kind in Pennsylvania, and is likely to influence other similar cases that follow. This is yet another court decision permitting employee claims against employers that allege adverse employment actions based on authorized off-site use of medical cannabis.
In Palmiter, the plaintiff, a medical assistant, was terminated by her health care employers for authorized off-site use of medical marijuana. Plaintiff alleged that she used medical marijuana to treat chronic pain, chronic migraines, and persistent fatigue. Prior to an acquisition, Plaintiff had disclosed that she was a certified medical marijuana patient to her employer. She alleges that she was advised there would be no issues with the acquiring entities regarding her statutorily authorized off-site use of medical marijuana. When she applied for employment with the acquiring entities, she was scheduled for a drug test. Plaintiff disclosed her off-site use of medical marijuana and produced a certification from her physician. A few days later, she alleges that she was notified by a representative of the acquiring entities that she would not be able to continue working for them due to her drug test. Plaintiff filed suit for violation of the MMA.
In a sweeping fifty-one page decision and order, the court discussed the MMA in great detail, along with recent court decisions from other jurisdictions that found a private right of action exists for employees even when it is not expressly stated in the state medical cannabis authorizing statute. In reaching its determination that Plaintiff could assert a claim, the court found that because nothing in the MMA or the promulgated regulations vests the overseeing department or any other state agency with the authority to enforce the anti-discrimination and anti-retaliation provision against private employers, the provision “would be rendered meaningless if an aggrieved employee could not pursue a private cause of action and seek to recover . . . damages from an employer that violates” it. Thus, recognition of an implied right of action under Section 2103(b)(1), the anti-discrimination and anti-harassment provision, is consistent with the MMA’s stated purpose “of providing safe and effective access to medical marijuana for eligible patients, while simultaneously protecting them from adverse employment treatment in furtherance” of the legislative intent. The court also found that since Plaintiff alleged she was terminated for a reason expressly prohibited by the MMA, she had identified a clear mandate of public policy that was implicated by her termination. For these reasons, the court permitted Plaintiff’s claim for violation of the MMA to proceed.
The court’s decision provides a road map for other Pennsylvania courts that are presented with similar employment-related claims. A case with a similar fact pattern — Suber v. Pittsburgh Water and Sewer Authority — was recently filed in Allegheny County. In Suber, Plaintiff was fired for off-site marijuana use after he failed a random drug test, despite having produced a copy of his state medical marijuana card to the contractor that administered the test. He had worked for the Pittsburgh Water and Sewer Authority for several months before the test was administered. Like Palmiter, Suber sued his former employer for violating the MMA’s public policy under Section 2103(b). It is yet to be seen whether the Suber court will take a similar approach to the claim he asserted.
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.