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Pennsylvania Court Recognizes an Employee’s Cause of Action for Employment Discrimination on the Basis of Medical Marijuana Use

        Judge Nealon, of the Court of Common Pleas of Lackawanna County, issued a landmark decision in Pennsylvania recognizing an employee’s right to claim employment discrimination on the basis of medical marijuana use. This is the first opinion in the state clarifying an employer's liability under the Medical Marijuana Act. 

          In Palmiter v. Commonwealth Health Systems, Inc., et al., the plaintiff/employee worked as a medical assistant and had informed her employer of her medical marijuana use. The employer was later acquired by a new entity. The employee applied for employment with the new entity, which required a post-offer drug test of its employees. Prior to the employee’s drug test, she disclosed that she used medical marijuana and provided a copy of her physician's certification. There were no facts to suggest that the employee used medical marijuana while working. She was subsequently informed that she could not work in the position of medical assistant with the new employer given her medical marijuana use. 

          The employee filed suit, which included an allegation that the new employer had violated Pennsylvania's Medical Marijuana Act's anti-discrimination provision. This provision prohibits an employer from discharging or otherwise discriminating or retaliating against an employee solely on the basis of the employee’s status as an individual who is certified to use medical marijuana. The employer moved to dismiss the employee's claims by arguing that there was no private right of action provided for under the Act. Judge Nealon disagreed noting there was no expressly provided private cause of action, but the right was implied. He reasoned that the anti-discrimination provision of the Act would be rendered meaningless if an aggrieved employee could not pursue a private cause of action and seek to recover compensatory damages from an employer. 

          The facts in Palmiter only involved an employee’s certified use of medical marijuana outside of work, and there were no allegations that her use of medical marijuana impacted her job performance. Accordingly, certain sections of the Act were not implicated in the Court’s analysis. Those provisions specifically do not require an employer to make any accommodation for the use of medical marijuana on employer's property, and the provisions recognize an employer's ability to discipline an employee for being under the influence of medical marijuana in the workplace or for working under the influence when the employee's conduct falls below the standard of care normally accepted for that position.   

          Although the Palmiter opinion is not binding on other courts in the state, it certainly provides a persuasive analysis and further developments in the case may prove instructive for employment matters. We would recommend employers review their current policies to assure they properly address medical marijuana use by employees and how to respond to drug testing that reveals such use.

If you have questions about this decision, medical marijuana use in the workplace, or updating of employment policies generally, contact a member of MacDonald Illig's Labor and Employment or Cannabis Practice Groups.