An employee may sue an employer under the Pennsylvania Medical Marijuana Act (“MMA”) for discrimination because of the employee’s status as an individual who is certified to use medical marijuana. This was the recent holding of the Superior Court in the case of Moses Taylor Hospital v. Palmiter.  As you may recall, we discussed Palmiter in 2019, when the case was filed, and again in 2020 when the Lackawanna County Court of Common Pleas recognized the right of an employee to sue an employer for discrimination under the MMA – the first court in Pennsylvania to do so.  The Superior Court decision affirms the county court’s holding and creates binding legal precedent for courts across the Commonwealth of Pennsylvania.

As we previously discussed, the private cause of action allows employees to file suit against employers for discrimination because of their status as a certified medical marijuana user.  The employee can file their claims directly with the courts, without having to exhaust administrative remedies. This creates a disconnect between other discrimination claims (i.e. disability, race), which first require the exhaustion of administrative remedies. Accordingly, employers may face multiple actions arising from the same incident at different times.  Further, it remains unclear what statute of limitations period is applicable for alleged violations of the PA Medical Marijuana Act. It is also unclear what remedies an employee might recover from a successful PA Medical Marijuana Act cause of action.  Finally, and most notably, neither the Superior Court nor the Court of Common Pleas opined on whether the conduct alleged by Ms. Palmiter actually constitutes discrimination under the MMA.  The Courts have only determined that a cause of action under the MMA exists.  Whether Ms. Palmiter can ultimately prove her case remains to be seen.

The Superior Court also considered Ms. Palmiter’s wrongful discharge claim, which argues that terminating an employee who is lawfully using medical marijuana outside of work, violates public policy.  The Superior Court allowed the wrongful discharge claim to proceed alongside discrimination claim, noting that Section 2103(b)(1) of the MMA clearly demonstrates public policy against termination of employment and other types of discrimination based on certified marijuana use off the employment premises. The Court noted that when a qualifying patient uses medical marijuana in accordance with MMA, it is a lawful medical treatment and akin to a prescription drug.

What does all of this mean for employers?  Employers would be wise to review any policies, or lack thereof, regarding the treatment of employees and applicants who use medical marijuana outside of work. As the Superior Court pointed out, Section 2103(b)(2) of the MMA allows employers “to discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted for that position.” Accordingly, an employer’s hands are not completely tied with regard to preventing the use of marijuana in the workplace and preventing employees from creating an unsafe environment due to their marijuana use.  However, the days of zero tolerance for marijuana use, especially when the individual is certified to use medical marijuana under the MMA, appear to be gone.

Employers should also be mindful of their policies and determinations relating to certified medical marijuana use to ensure compliance with all of the various laws and regulations and the potential overlap with other state and federal discrimination laws.  For any questions or concerns regarding medical marijuana policies or any employment-related matters, contact Denise Elliott.

The full cite for Palmiter is as follows:  Scranton Quincy Clinic Company, LLC d/b/a Physicians Health Alliance and Scranton Quincy Hospital Company, LLC d/b/a Moses Taylor Hospital v. Pamela Palmiter, 2021 Pa. Super. 155 (August 5, 2021).