[co-author: Sal Sciacca]*
What’s new in the world of medical marijuana, as it impacts your workplace? Quite a bit, actually. Here is the rundown.
PA Medical Marijuana Act – Anxiety and Tourette’s Syndrome Added to List of Serious Medical Conditions
Effective July 20, 2019, the Pennsylvania Department of Health added anxiety disorders and Tourette’s syndrome to the list of serious medical conditions for which a patient can obtain medical marijuana. Dr. Rachel Levine, Secretary of Health for the Commonwealth of Pennsylvania, announced the additions last week. The addition of anxiety disorders and Tourette’s syndrome expands the list of approved qualifying conditions to twenty-three.
Pennsylvania Litigation – Does the PA Medical Marijuana Act Include a Private Right of Action for Discrimination?
As you may recall from prior blog posts, the PA Medical Marijuana Act contains an explicit anti-discrimination provision. Section 2103(b)(1) of the Act provides that “no employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against any 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.” However, the Act does not contain an explicit cause of action for the enforcement of Section 2103(b)(1). Accordingly, for an employee to assert a claim for discrimination under the Act, the courts must find that the language of the Act creates an implied right of action. A plaintiff in Lackawanna County is currently asking that the Lackawanna County Court of Common Pleas to do just that. Palmiter v. Commonwealth Health Systems, et al., Lackawanna County C.C.P. Docket No. 19-CV-1315.
Ms. Palmiter’s Complaint alleges that (1) she disclosed to her employer that she was certified to use medical marijuana under PA law, (2) she applied for a new position and was told she must submit to a drug test; (3) she told the drug testing facility that she used medical marijuana and provided a copy of her certification card to her employer; and (4) the employer told her she was not allowed to return to work. Ms. Palmiter alleges that the foregoing actions were discriminatory and constitute a violation of Section 2103(b)(1). Commonwealth Health filed preliminary objections seeking dismissal of the Section 2103(b)(1) claim. Commonwealth Health is arguing that no private right of action exists and that there is nothing in the text or the legislative history of the Act to warrant the creation of an implied cause of action.
No other court in Pennsylvania has addressed this issue. Accordingly, we expect that the Lackawanna County Court will look to decisions of other states for guidance. If the Court reviews a recent decision of the Superior Court of Delaware, it may be inclined to agree with Ms. Palmiter (See February 26, 2019 Blog Post). Unless the case settles, we may soon have a decision from a Pennsylvania Court on the impact of the Act on Pennsylvania employers!
Michigan – No Private Right of Action Created by the Michigan Medical Marijuana Act
The Court of Appeals of Michigan recently addressed the implied right of action question under the Michigan Medical Marijuana Act (“MMMA”). In Eplee v. City of Lansing, the Michigan Court found that the MMMA did not create a private right of action for discrimination/retaliation. The Plaintiff in Eplee claimed that the Defendant violated the MMMA when it rescinded a conditional offer of employment based on her THC-positive drug screening. Ms. Eplee argued the MMMA prohibited the prospective employer from denying her any right or privilege, including civil penalty or disciplinary action, based on her medical use of marijuana. According to Ms. Eplee, the Defendant rescinded her conditional offer solely because of her status as a registered qualifying patient and thus denied her the right of employment in violation of the MMMA. The Defendant argued that the MMMA did not create a private cause of action and argued for dismissal of plaintiff’s lawsuit. The Court of Appeal of Michigan agreed with the Defendant, finding that the cited section of the MMMA operates merely as “an immunity provision; it does not create affirmative rights.”
While this is good news for employers in Michigan, we doubt the Eplee decision will factor into the Court’s decision in Palmiter. Critically, the MMMA does not mention employers, but the PA Act does. As noted above, the PA Act expressly forbids employers from discriminating or retaliating against employees based “on the basis of such employee’s status as an individual who is certified to use medical marijuana.” There is no such language in the MMMA. Thus, the Palmiter Court is not likely to find the Eplee decision relevant or persuasive.
Prohibitions on Pre-Employment Drug Testing for Marijuana
New York City and the State of Nevada recently passed laws restricting the use of pre-employment drug testing for marijuana.
In April, the New York City Council passed a bill banning employers from testing prospective employees for marijuana. Testing for the presence of marijuana as a condition of employment is now an unlawful discriminatory practice under the New York City Human Rights Law. Notably, the bill does not outlaw pre-employment testing for drugs other than marijuana. The bill also carved out several exceptions where it will not apply, including for police officers, commercial drivers, and those positions dealing with the building code. This law will take effect in New York City on April 9, 2020.
The Nevada Assembly passed a similar bill, which will take effect on January 1, 2020, “prohibiting the denial of employment because of the presence of marijuana in a screening test.” Nevada Assembly Bill No. 132 alters Chapter 613 of the Nevada Revised Statutes—dealing with unlawful employment practices—and makes it unlawful for an employer to refuse to hire a prospective employee because the prospective employee tested positive for marijuana. Certain exceptions apply, similar to the New York City law, such as for firefighters, emergency medical technicians, or where the employer determines that marijuana use “could adversely affect the safety of others.” AB132 also allows employees to submit to an additional screening test—at his or her own expense—to “rebut the results of the initial screening test.”
While these laws do not take effect until 2020, Employers with employees in New York City and Nevada are encouraged to start the process of complying with the new testing prohibitions. The process should include revising drug testing policies, speaking with your drug testing facilities to ensure compliance and confirming whether any exceptions or carve outs will apply.