Individuals may file private discrimination claims under Pennsylvania’s Medical Marijuana Act (MMA), the U.S. District Court for the Eastern District of Pennsylvania recently decided. The September 25, 2020, ruling joins a previous state court decision coming from Lackawanna County, practically settling the issue for employers until any appeals court takes it up.
Donna Hudnell began working for Thomas Jefferson University Hospital in 2016 and experiencing significant back pain in 2018. A doctor associated with the hospital certified her to use medical marijuana, which she began using to ease her pain. After the pain increased, she took a leave of absence in 2019 to undergo surgery.
When Hudnell returned, she was required to take a drug test because she had been out of work for more than 90 days. At the time of the test, her marijuana authorization card had expired, but she alleges she told the nurse administering the test she had a recertification appointment scheduled for the next week.
Hudnell failed the test, but afterward her doctor quickly recertified her to use medical marijuana. Nevertheless, the hospital fired her based on the failed drug test and claimed the recertification had no effect on its decision because she didn’t have a valid card at the time she took the test.
In discussions that followed, Hudnell insisted she legally purchased and used medical marijuana only while her card was active and that her legal use triggered the positive test.
The court observed the MMA protects patients from employment discrimination in P.S. § 10231.2103(b)(1), which states, “No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an 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.”
The question before the court therefore was whether the protection allows an employee to sue in court or whether it’s exclusively enforced by the Pennsylvania Department of Health.
Because the MMA is a state law, the federal court was required to predict as best as possible how the Pennsylvania Supreme Court would rule on the issue. The court applied Pennsylvania state law and concluded the supreme court would imply a private right of action under the Act. Therefore, it allowed Hudnell’s claims to proceed and survive the hospital’s request to dismiss.
The decision joins the lone case from the Pennsylvania state court system on the issue, Palmiter v. Commonwealth Health Systems, Inc., 19-cv-1315 (Lackawanna County, Nov. 22, 2019). At this time, no appellate courts have ruled on the subject. Thus, even though the previous decisions are persuasive, other courts aren’t legally required to follow them. The law won’t be fully settled until a state appellate court rules on the topic.
Still, the harmony between the two decisions identifies that employers expose themselves to litigation by taking adverse action against employees solely based on their medical marijuana use. Hudnell v. Thomas Jefferson University Hospitals, Inc., No. 2:20-cv-1621-GJP.
How Should Employers React?
There are more than 4.3 million authorized medical cannabis patients in the United States, which has raised a number of issues for employers. As more litigation is proving, drug testing alone is an inadequate way to monitor employees’ marijuana use.
Unlike other drugs and alcohol, marijuana is detectable in blood and urine for up to a month and in hair much longer. Consistent use also causes THC from marijuana to accumulate in fatty tissues, which eliminates more slowly the more it becomes accumulated.
The science leads to the unavoidable fact that if an employee is legally using marijuana on a consistent basis, she will almost always test positive regardless of whether she is or was under the influence at the time of the test, or even within a recent time period.
The recent federal court decision raises the stakes for you to take a close look at your drug testing policies and practices. Although you aren’t required to let your employees be under the influence while on the job, you’d be swimming in troubled waters by adopting any type of “absolute” or “zero tolerance” policy aimed toward their marijuana use offsite.
If you have any questions about this case or other concerns related to medical marijuana in the workplace, you can reach Erik Pramschufer, of Saul Ewing Arnstein & Lehr LLP, at email@example.com.