The Legal Intelligencer
(by John McCreary)
This is the third installment of the author’s episodic examination of the employment law implications of the legalization of medical marijuana. The first installment appeared in The Legal Intelligencer’s Feb. 9, 2017, online edition—shortly after Pennsylvania’s Medical Marijuana Act (MMA) became effective—and described some of the ambiguities of and practical difficulties with the MMA’s employment provisions. This was followed by an article in the March 21, 2019, edition of The Legal surveying how jurisprudence from other jurisdictions had addressed some of the issues identified in the first article. There now have been a few Pennsylvania decisions on the subject, which along with the courts elsewhere are slowly creating a body of law defining rights and obligations under the medical marijuana laws. From review of these recent cases we can conclude that the courts are sympathetic to medical marijuana patients, but to this point they have yet to squarely address the significant job safety issues likely to be encountered in the workplace, issues recognized in the Pennsylvania MMA as well as in the analogous legislation from other states.
Pennsylvania cases
Two Pennsylvania decisions of note provide insight into the approach of the commonwealth’s courts to the issues raised by the use of medical marijuana.
Palmiter v. Commonwealth Health Systems, No. 19-CV-1315 (Lackawanna Cty. 2019) found an implied cause of action to enforce the MMA’s antidiscrimination provision. That section of the MMA creates a protected class of employees “certified to use medical marijuana,” who are protected against employment discrimination because of such “status” as a certified user. See 35 Pa.C.S.A. Section 10231.2103(b)(1). But uniquely among the commonwealth’s employee-protective laws, the MMA does not provide statutory remedies, nor does it explicitly confer jurisdiction on the courts to address violations. This statutory insufficiency is in marked contrast to, for example, the Pennsylvania Human Relations Act, which provides a comprehensive procedure for addressing employment discrimination claims including resort to the courts, and sets forth available remedies such as reinstatement to employment, back pay, and attorney fees. The failure of the legislature to prescribe similar remedies in the MMA suggested to Commonwealth Health Systems that perhaps there was no private cause of action for employment discrimination available under Section 2103(b). The court, however, rejected the contention, ruling that Section 2103(b) implicitly creates a cause of action for employment discrimination motivated by the use of medical marijuana:
However, nothing in the MMA or the promulgated regulations vests the department or any other state agency with the authority to enforce Section 2103(b)(1) against private employers that have not chosen to voluntarily take part in that program, and those anti-discrimination provisions 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 that violates Section 2103(b)(1). Recognition of an implied right of action under Section 2103(b)(1) 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 in Section 2103(b)(1). Therefore, the employers’ demurrer to the employee’s private cause of action based upon Section 2103(b)(1) will be overruled. See Palmiter v. Commonwealth Health Systems, slip op. at 2-3.
The Pennsylvania Supreme Court in Gass v. 52nd Judicial District, Lebanon County, No. 119 MM 2019 (June 18, 2020) decided that the MMA overrode a Lebanon County court policy prohibiting the use of medical marijuana by individuals under court supervision. The Lebanon County Probation Office policy at issue declared that the “medical marijuana card issued under the MMA is not a prescription for medication, but rather a recommendation by a physician as to a form of treatment” and concluded that because marijuana remained illegal under federal law “the court and the Probation Department should not knowingly allow violations of law to occur, the prohibition against such use is required.” Rejecting the policy in the face of the district’s argument that permitting medical marijuana use would make the supervision of probationers more difficult, a unanimous Supreme Court invoked the “remedial nature” of the MMA, which “should be accorded liberal construction,” and declared that Section 2103(a)(1), which provides that no medical marijuana patient “shall be subject to arrest, prosecution or penalty in any manner, or denied any right or privilege … solely for lawful use of medical marijuana … or for any other action taken in accordance with this act,” 35 Pa.C.S.A. Section 0231.2103(a), actually meant what it said. Ultimately, the court concluded that the potential problems caused by the MMA were beyond its authority to remedy:
As we have observed previously: “The concern that unintended consequences may unfold are prevalent relative to the promulgation of experimental, remedial legislation.” See Williams v. City of Philadelphia, 647 Pa. 126, 150, 188 A.3d 421, 436 (2018). Nevertheless, “where the language of the governing statute is clear (or clear enough) … the solution is legislative—and not judicial—adjustment.”
Together these two decisions signal that the Pennsylvania courts will likely embrace a “liberal construction” of the MMA, one that favors medical marijuana patients attempting to overcome resistance to marijuana use by their employers. A cautious, proactive approach to medical marijuana employment issues would therefore seem to be warranted.
Cases From elsewhere
The trend of liberal construction is also seen in decisions from other jurisdictions. The New Jersey Supreme Court earlier this year ruled that the state’s Compassionate Use Medical Marijuana Act (Compassionate Use Act), N.J.S.A. 24:6I-1 to -16 must be read in para materia with the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, holding that when medical marijuana is prescribed for a condition qualifying as a disability under the LAD, a New Jersey employer has a duty to reasonably accommodate such marijuana use. See Wild v. Carriage Funeral Holdings, 241 N.J. 285, 227 A.3d 1206 (2020). New Jersey thus joins Massachusetts in recognizing that prohibitions against disability discrimination require employers to consider whether prescribed marijuana use is a reasonable accommodation under state disability laws. See Barbuto v. Advantage Sales & Marketing, 477 Mass. 456, 78 N.E.3d 37 (2017), discussed in the 2019 installment. And as also discussed in the 2019 piece, it is likely that the Pennsylvania courts will come to the same decision when presented with the issue.
In Whitmire v. Wal-Mart Stores, 359 F.Supp.3d 761 (D. Ariz. 2019) the court addressed an employer’s affirmative defense under Arizona’s Medical Marijuana Act (AMMA). In addition to holding as a matter of first impression that AMMA’s anti-discrimination provision created a private right of action for alleged violations, the court sua sponte issued summary judgment in favor of the plaintiff on that claim. The court’s reasoning presents a cautionary tale for employers defending such claims. AMMA provides that “[A]n employer may not discriminate against a person in … termination … based upon … a registered qualifying patient’s positive drug test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.” The plaintiff suffered an injury at work and pursuant to Wal-Mart policy underwent a drug screen. She tested positive for marijuana, but explained in mitigation that she was a registered medical marijuana patient. Wal-Mart nevertheless terminated her employment, contending that the high level of marijuana metabolites discovered by the test (more than 1000 ng/ml of urine) indicated impairment at work. The court found as a matter of law that Wal-Mart could not demonstrate impairment without “expert testimony establishing that the level of metabolites present in the plaintiff’s drug screen demonstrates that marijuana was present in her system in a sufficient concentration to cause impairment.” Thus, “in the absence of any expert testimony or evidence demonstrating impairment, the court will, pursuant to Rule 56(f), sua sponte grant summary judgment in part to the plaintiff solely on the question of liability on the U.S. Court of Appeals for the Second Count of her complaint alleging discrimination under the AMMA.”
The Whitmire decision highlights the importance of establishing an admissible evidentiary basis for the affirmative defenses available to employers under Pennsylvania’s MMA. Recall that the MMA contains provisions permitting employers to exclude employees who are “under the influence” from “life threatening” tasks and duties “which could result in a public health or safety risk.” It is therefore essential that employers relying on these “safety sensitive” defenses present expert evidence about impairment, or risk having their defense rejected out of hand.
Although the reported cases in Pennsylvania and elsewhere certainly seem plaintiff-friendly, plaintiffs do not always win. Lambdin v. Marriott Resorts Hospitality, (D. Hawaii 2017) demonstrates the importance of examining the bona fides of a plaintiff’s claim. After the plaintiff suffered a panic attack at work that necessitated his transportation to the hospital, he was required under Marriott’s policy to undergo a drug screen, which was positive for marijuana. Marriott policy required termination for a positive drug screen administered following an on-the-job accident. The plaintiff’s reliance on Hawaii’s medical marijuana law in opposition to his termination failed because at the time of the drug test he had only applied for certification under the law; it had not yet been issued and he therefore failed “to show that he was lawfully using marijuana pursuant to Hawaii state law.” The court granted summary judgment to Marriott on this basis.
Conclusion
To date, the courts of the commonwealth and elsewhere have interpreted medical marijuana laws in a manner friendly to medical marijuana patients, but have yet to address the legitimate safety issues presented by their presence in the workplace. It can be safely predicted, however, given what our Supreme Court has acknowledged is the remedial nature of the MMA and the Whitmire court’s decision that employers that intend to defend a claim on the basis of safety, impairment or “under the influence” will be required to provide more than anecdotal evidence in support of the defense. Indeed, it is likely that such defenses will require expert testimony.
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Reprinted with permission from the September 17, 2020 edition of The Legal Intelligencer© 2020 ALM Media Properties, LLC. All rights reserved.