Denise Elliott

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At the end of 2018, the Superior Court of Delaware held that a terminated employee could proceed with his lawsuit, alleging that his employer terminated him for being a medical marijuana cardholder.  Chance v. Kraft Heinz Foods Co.  In allowing the suit to move forward, the Delaware Court found that the anti-discrimination language in the Delaware Medical Marijuana Act (“DMMA”) created an implied cause of action for employees to sue their employers.  Pennsylvania employers should pay attention to the Chance decision for several reasons: (1) the anti-discrimination language in the Delaware Medical Marijuana Act is similar to language contained in the Pennsylvania Medical Marijuana Act; (2) the Delaware decision continues the recent trend of employee-sided decisions by courts in Connecticut and Rhode Island; and (3) the Delaware case dealt with a post-accident drug test, thus further expanding protections for employees who use medical marijuana outside of work.

The facts of the case are straightforward, but important to note:

Chance was a seven-year employee at Kraft’s Dover, Delaware facility. In 2016, he obtained a Delaware medical marijuana card and used medical marijuana to treat a variety of medical conditions.  In late 2016, Kraft sent Chance for a post-accident drug test, after his “shuttle wagon” derailed. The Medical Review Officer contacted Chance and advised that he tested positive for medical marijuana. Chance explained to the MRO that he had a valid medical marijuana card and, indeed, produced a copy of the card.  Nonetheless, the test was verified positive and Chance was terminated in accordance with Kraft’s drug testing policy.

Notably, there were no allegations that Kraft believed Chance was under the influence or that the derailment was related to his use of medical marijuana.

Chance subsequently filed suit, alleging violations of, among other things, the anti-discrimination clause contained in the DMMA.  Kraft filed a motion to dismiss the suit, arguing that Federal Law, specifically the Controlled Substances Act, preempted the DMMA and that the DMMA did not create a private right of action.  The Delaware Court disagreed with Kraft and ruled for Chance.

On the preemption argument, the Delaware court noted that the Controlled Substances Act “does not make it illegal to employ someone who uses marijuana, nor does it purport to regulate employment matters.”  Rather, the CSA prohibits the unauthorized manufacture, dissemination, dispensing and possession of marijuana.  Accordingly, said the Court, the CSA was not in conflict with the DMMA, which provides that an “employer may not discriminate against a person in hiring, termination, or any term or condition of employment . . . if the discrimination is based upon either of the following: a) The person’s status as a cardholder; or b) A registered qualifying patient’s positive drug test for marijuana . . . unless the patient used, possessed, or was impaired by marijuana on the premises of the place of employment or during the hours of employment.”  In support of its finding that the two acts were not in conflict, the Delaware court cited to the 2017 decision of the Rhode Island Superior Court and the 2018 decision of the U.S. District Court for the District of Connecticut (Noffsinger v. SSC Niantic Operating Co, LLC).

Regarding the right of action argument, the Delaware Court made a common-sense ruling.  According to the court, the legislature would not have included anti-discrimination language in the DMMA if there was no mechanism for enforcing it:

The purpose of Section 4905A is to prohibit employment-related discrimination based upon either status as a medical marijuana cardholder or a qualifying patient’s positive drug test . . . In the DMMA, no agency or commission has been tasked with enforcement of the anti-discrimination provision . . . no remedy other than a private right of action is available to cardholders . . . The fact that an anti-discrimination provision was included in the DMMA demonstrates legislative intent to remedy the problem of discrimination based upon one’s cardholder status . . . Absent a finding of an implied right of action, Section 4905A would be devoid of any purpose within the broader context of the statute.

Again, in finding a private right of action, the Delaware Court found support in the prior decisions of the Rhode Island and Connecticut courts.

So . . . why should a Delaware decision matter to Pennsylvania employers?  Because the Pennsylvania Medical Marijuana Act (the “PA Act”) includes an anti-discrimination provision similar to the one in the DMMA.  By way of reminder, the PA Act states 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.”  MMA section 2103(b)(1).  Because the two provisions are similar, it is reasonable to expect that a Pennsylvania Court, when confronted with the issue for the first time, will look to the decision of its neighboring state for guidance.

As Delaware joins the ranks of Connecticut, Rhode Island and Massachusetts in issuing employee friendly decisions and expanding protections for off-duty use of medical marijuana, Pennsylvania employers should take heed!

  • Conduct a careful review of your drug use and testing policies. A policy that mandates termination for a positive test, with no exception for legal off-duty medical marijuana use, could be discriminatory.  Relying on the traditional argument that a positive test for marijuana can result in termination because marijuana remains illegal under federal law, is not recommended.  Based on the decision in Kraft, such an argument likely will be rejected,
  • Proceed with caution when an employee, who is certified to use medical marijuana, tests positive, even if the test was administered post-accident. Rushing straight to termination based solely on a positive test may violate the PA Act.

Should you need assistance in revising your drug use and testing policies or wish to discuss the impact of medicinal marijuana legalization on your workplace, please contact Denise E. Elliott, Esq. or another member of our Labor and Employment Group.

On October 17, the Pennsylvania Senate signed the previously approved House Bill 1840, known as the “Protz Workers’ Compensation Legislative Fix,” which is expected to be signed into law by Governor Tom Wolf within the next several days.

Why is a “Protz Fix” necessary? Employers in Pennsylvania suffered a major blow, when the Impairment Rating provisions of Act 57, were invalidated by the Pennsylvania Supreme Court in the 2017 case of Protz v. WCAB. The Impairment Rating Evaluation (“IRE”) process reduced WC costs by limiting temporary total disability benefits (“TTD”) to 104 weeks, so long as the degree of impairment under the American Medical Association Guidelines to the Evaluation of Permanent Impairment was less than 50%. The Supreme Court in Protz found that the IRE provisions were an unconstitutional delegation of legislative power under Article II, Section 1 of the Pennsylvania Constitution, since impairment was to be determined “pursuant to the most recent edition of the AMA Guidelines to the Evaluation of Permanent Impairment.” The AMA Guidelines are revised every few years, and accordingly, the Court found that the Impairment Rating provisions allowed the measurement standards for impairment to “automatically” change every few years, without any ongoing legislative oversight.     

The Protz Fix, which hopefully will be signed by Governor Wolf, corrects this problem by specifying the use of the Sixth Edition of the AMA Guidelines. In a compromise gesture to injured workers, the Bill would also lower the impairment threshold from 50% to 35%, for entitlement to ongoing TTD benefits.

Although the Protz Fix, if signed, will certainly be challenged by plaintiff attorneys, the new law would seem to satisfactorily address the Constitutional concerns raised by Protz.

We will keep you posted concerning further developments and naturally, if you have any questions or concerns, please contact a member of our WC group, including Denise Elliott, Micah Saul or Paul Clouser.

Two years ago, when the Pennsylvania Medical Marijuana Act (MMA) passed, we advised employers that the Act contained an express anti-discrimination provision providing 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.  MMA §2103(b)(1).

Since that time, however, there has been little guidance to employers regarding the breadth or impact of this anti-discrimination provision.  This month, that changed.

On September 5th, a Federal District Court in Connecticut ruled on the impact of such an anti-discrimination provision in the hiring context.  Noffsinger v. SSC Niantic Operating Co., LLC. Because the Connecticut Palliative Use of Marijuana Act (PUMA) includes the same anti-discrimination as the PA Act, the Noffsinger decision provides guidance to Pennsylvania employers.

In Noffsinger, the employer, a health and rehabilitation facility, offered plaintiff the position of Activities Manager subject to completion of various pre-employment screenings, including a drug screen.  At that point, plaintiff advised the hiring manager that she was qualified under PUMA to use medical marijuana to treat PTSD.  Plaintiff showed the manager an empty pill container specifying the dosage information for her medical marijuana pills and stated she took the pills each evening to prevent night terrors.  Employer sent plaintiff for the drug screen, which returned positive for THC.  The hiring manager discussed the situation with HR and advised that plaintiff was disqualified from the job because “medical marijuana is not an approved prescription” and “we use federal law, which indicates marijuana is still illegal.”  Employer subsequently rescinded plaintiff’s job offer.

The plaintiff filed suit alleging, among other things, that the employer discriminated against her in violation of PUMA’s anti-discrimination provision.  The relevant portion of PUMA provides “No employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient.”  Discovery revealed that “plaintiff’s job offer was rescinded because of her positive drug test result and that this positive drug test result stemmed from plaintiff’s use of medical marijuana pursuant to her qualifying status under PUMA.”  Accordingly, the District Court granted summary judgment in plaintiff’s favor, unequivocally stating that the employer’s refusal to hire her violated PUMA’s anti-discrimination provision and that the statute contained an implied private right of action.  Notably, the District Court rejected the employer’s arguments that federal law pre-empted PUMA and that the federal Drug Free Workplace Act barred it from hiring plaintiff.

They key take-aways from the Noffsinger case are as follows:

  • The anti-discrimination provision contained in Connecticut’s PUMA provides an implied right of action;
  • A zero-tolerance pre-employment drug testing policy violates the anti-discrimination provision in the Connecticut law;
  • The Drug Free Workplace Act will not save a zero-tolerance policy, because the DFWA only requires federal contractors to “make a good faith effort to maintain a drug-free workplace.” The DFWA does not require drug testing and does not prohibit federal contractors from employing someone who uses medical marijuana outside the workplace in accordance with a program approved by state law.
  • The anti-discrimination provision contained in PUMA mirrors the anti-discrimination provision contained in the PA Medical Marijuana Act.

Based on the Noffsinger decision and the similarities between the PUMA and the PA MMA, PA employers should take caution.  Refusing to hire an applicant, who is a certified to use medical marijuana under PA law, simply because he/she has failed or will fail a drug screen likely violates the anti-discrimination provision of the PA MMA.  Instead, we recommend that employers engage in an interactive process with the employee to determine if his/her use of medical marijuana, outside of work, can be accommodated (i.e. whether the employee’s use of medical marijuana will affect the employee’s ability to perform work in a safe and productive manner).  We also recommend including exception language in your pre-employment drug testing policy.

We are glad to help you work through the interactive process, to assist with the review and revision of your policies or to otherwise discuss with you the impact of the PA MMA on your workplace.

Typically, a drug test cannot be certified as positive until a Medical Review Officer (“MRO”) verifies the result.  For drivers subject to the Federal Motor Carrier Safety Act, Department of Transportation Regulations state that an MRO must verify as positive a confirmed test result for drugs, unless the employee presents a legitimate medical explanation for the presence of the drug in his/her system.  The employee bears the burden of establishing the legitimate medical reason for the positive test.

With the passage of state laws legalizing the use of medical marijuana, including here in Pennsylvania, many have questioned whether the use of medical marijuana, pursuant to state law, constitutes a legitimate medical reason for a positive drug test. In an updated “Medical Marijuana Notice” issued this fall, the Department of Transportation answered the question.  The DOT said “No.”

The DOT’s Notice makes it clear that marijuana, in all forms, remains illegal under federal law and the DOT expects that MROs will treat marijuana, whether used recreationally or medicinally, as illegal.  Accordingly, the Notice provides that “Medical Review Officers will not verify a drug test as negative based upon information that a physician recommended that the employee use ‘medical marijuana’ . . . It remains unacceptable for any safety‐sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.”

The implications of medical marijuana use for CDL drivers is now clear.

But, what about drug tests for employees not regulated by the DOT?

The reality is that most MROs follow DOT testing guidelines for all drug tests in an effort to ensure consistency.  Accordingly, even when a non-DOT regulated employee tells the MRO that he/she is certified to use medicinal marijuana, the MRO will nonetheless certify the test as positive.  The MRO may include an external note to the employer that the employee claimed medicinal use.  However, the MRO will not seek to confirm the employee’s claim or to otherwise determine if the employee is a certified user.

The take-away is this . . . drug testing facilities will not help employers decide how to handle medical marijuana use.  A positive drug test will be a positive drug test, regardless of whether the employee is certified to use medical marijuana.  Accordingly, at the end of the day, outside of the CDL context the burden remains on the employer to decide, in accordance with its policies, how, if at all, the employee’s medicinal use impacts employment status.

Should you have any questions about your company’s drug testing procedures or your drug testing policies as the Pennsylvania Medical Marijuana Act nears full implementation, do not hesitate to contact us.

Since the passage of the Medical Marijuana Act (“MMA”), we have received many questions from employers regarding the MMA’s impact on employment law; one of the most frequent questions being – what do I do if an employee tells me he/she is using medical marijuana? While the answer to this question will partly depend on state regulations that have yet to be issued, for now there are a few things that employers should know and do when confronted with an employee who is using medicinal marijuana:

  1. Recognize that only “certified users” are legally permitted to use medicinal marijuana in Pennsylvania. Only individuals who are “certified” under the MMA are authorized to use medical marijuana in Pennsylvania. Because the regulatory framework to implement the certification process has not been implemented, there presently is no mechanism for individuals in Pennsylvania to become “certified.” Until the regulatory framework is in place and certifications are being issued, any employee who reports that he is using medical marijuana is likely violating the law. Until a certification is issued, the employee is not entitled to the protections contained in the MMA, such as the anti-discrimination provision at §2103(b)(1), which we discussed here.
  1. Understand that the MMA does not require employers to accommodate the use of medical marijuana while the employee is at work. The MMA specifically provides “nothing in this Act shall require an employer to make an accommodation for the use of medical marijuana on the property or premises of any place of employment.” §2103(b)(2). For this reason, it appears employers may implement and/or continue to enforce policies that prevent marijuana use at work or on the employer’s premises, regardless of whether the use is certified under the MMA.
  1. Analyze the employee’s situation in accordance with the ADA. Under current interpretations of the law, it appears that the ADA does not prohibit an employer from discharging an employee who tests positive for marijuana, even if the use was prescribed by a doctor. However, the employee who voluntarily discloses medical marijuana use, because the employee has a disability, may be entitled to protection under the ADA. Accordingly, an employer should engage in an interactive process with the employee to determine whether accommodations are warranted. While we strongly recommend that employers seek guidance from counsel in these situations, the following general steps should be followed in all situations:
  • Ask the employee, in writing, to obtain a letter or report from his/her health care provider identifying the condition for which the medicinal marijuana has been prescribed and how, if at all, the employee’s use of medicinal marijuana will impact or impair the employee’s ability to perform his/her job. Providing a copy of the employee’s job description to the health care provider is a best practice.
  • To the extent the employee’s ability to perform his/her job is impacted by the use of medicinal marijuana, assess whether the employee can perform the essential functions of the job with or without reasonable accommodation. Remember, this is a fact-specific inquiry that should be conducted on a case-by-case basis. For example, if you would normally provide medical leave to an employee temporarily prohibited from performing his job due to the use of prescription drugs, you may be required to do the same for an employee with a prescription for medicinal marijuana.
  • To the extent an employee’s ability to perform his/her job is not impacted by the use of medicinal marijuana, remind the employee that reporting to work “under the influence” and the use of marijuana at work or on the employer’s premises are strictly prohibited.
  • Continue communicating with your employee to fulfill your obligations to interact under the ADA.

Naturally, if you have specific questions about the MMA and its impact on your workplace, please don’t hesitate to call any member of our Labor and Employment Law Practice Group for further guidance. As the Pennsylvania Department of Health begins to implement temporary regulations, we will keep you apprised of further developments.

Pennsylvania’s Medical Marijuana Act (MMA) was signed into law on April 17, 2016 and officially took effect last week. One of the questions we’ve been asked since the passage of the Act is: how will employer provided insurance (both health and workers’ compensation) be affected by the legalization of medical marijuana in Pennsylvania? The simple answer is that there should be no immediate effect on either employer provided health insurance or the administration of workers’ compensation insurance.

Pursuant to Section 2102 of the MMA, insurers and health plans, whether paid for by Commonwealth funds or private funds, are not required to provide coverage for medical marijuana. The inclusion of Section 2102 in the MMA is consistent with a nationwide consensus that medicinal cannabis need not be covered under health insurance. That marijuana remains a Schedule I controlled substance, is illegal under federal law and is not an FDA approved medical treatment lend support to those employers and insurance companies objecting to coverage. Section 2102 recognizes these concerns and objections and gives clear guidance to insurers and health plans in Pennsylvania regarding their requirements – or rather the lack thereof – to provide health insurance coverage for medicinal marijuana.

With regard to workers’ compensation coverage, insurance carriers and self-insured employers may have similar objections to paying for medicinal cannabis prescribed for a work-related condition covered by the MMA (i.e. neuropathies or severe chronic pain). Section 2102 is broadly written and, thus, likely also supports the argument that medical marijuana need not be covered under workers’ compensation insurance.

While the MMA does not require employers and carriers to provide coverage for medicinal cannabis, we recognize that some employers may consider doing so. In the context of chronic pain for example, medicinal cannabis is seen as an alternative to opiate therapy, which can be costly, ineffective and, in some cases, deadly. If the treating physician of an injured worker suffering from chronic pain should suggest medical marijuana as an alternative to opiates, there is nothing in the Act prohibiting workers’ compensation insurance from covering such treatment. Before providing coverage, however, employers and carriers should ensure that there is compliance with all other aspects of the MMA. For example, the prescribing doctor must be a registered “Practitioner” as that term is defined by the Act, the requirements of “Continuing Care” must be met and the injured worker must be suffering from one of the “Serious Conditions” enumerated in the Act. Employers and carriers should further consider the impact of federal law on providing such coverage and should consult with counsel to address specific questions.

As with any new law, there are many unanswered questions. The Department of Health is required to publish temporary regulations by October 17th and full regulations must be published by the fall of 2017. These regulations should provide guidance on the implementation of the Act and interpretation of specific provisions. Note – medical providers may not begin prescribing medicinal marijuana until the regulatory framework is in place. Accordingly, until the regulations are published, we cannot know the full impact that the law will have on the workplace.

The McNees Labor and Employment Group will be closely monitoring developments to the law and, specifically, the implementation of the temporary and permanent MMA regulations. We will continue to keep you advised as things develop. In the meantime, should you have specific questions about the law, your policies and plans or your employees, please do not hesitate to contact any member of the McNees L&E Group.

As if it knew we would be discussing this topic at the 26th Annual McNees Labor and Employment Seminar on June 3rd, in Hershey, PA, the Commonwealth Court of Pennsylvania recently issued a decision addressing whether an injury occurring in an employer’s parking lot was sustained in the course and scope of employment for purposes of workers’ compensation coverage.

In Quality Bicycle Products, Inc. v. WCAB, the employer challenged the claim related to an injury sustained by an employee while the employee was running to his car. The claimant was leaving work after receiving a panicked message from his wife that his daughter was missing from school. While running through the parking lot to his car, he heard a pop in his knee, felt excruciating pain and fell to the pavement. The employer denied benefits for the knee injury, arguing that the claimant was not in the course and scope of his employment at the time he was injured.

An injury occurs within the course and scope of employment, and is considered work related, if: “(1) the claimant was furthering the interest of the employer’s business at the time of the injury; or (2) if the injury was caused by a condition of the employer’s premises or the operation of employer’s business thereon.”  The employer argued that claimant could not meet either prong of this test. The Court agreed.

In analyzing the case, the Court first noted that “an injury suffered while traveling to and from work [which claimant was in this case] is not considered to have occurred in the course and scope of employment.” This is because the employee is not furthering the business or affairs of his employer while merely commuting. When an employee is not furthering the business of the employer, the employee must satisfy the three part premises test to demonstrate a work related injury: (1) the injury occurred on the employer’s premises; (2) the employee’s presence thereon was required by the nature of his employment; and (3) the injury was caused by the condition of the premises or by the operation of employer’s business thereon. In Quality Bicycle, the parties agreed that the first two prongs were satisfied, but the employer argued that the third was not. The Court agreed, explaining that the parking lot neither caused nor contributed to claimant’s injury. Rather his injury was caused by his own act of running. The Court distinguished this case from others where the injury was found to be work related – an employee who suffered a seizure in his car and was injured when he wrecked into a concrete abutment on employer’s property; an employee who was thrown off the hood of a moving car when the driver turned suddenly to avoid a closed exit gate. In both those cases, it was the employer’s premises (the concrete abutment, the closed gate) that caused or contributed to the accident. Conversely in Quality Bicycle, claimant’s knee popped as a result of his running, not because of a bump, hole or rock on the pavement.

The lesson from this case is that employers should thoroughly investigate questionable claims and analyze such claims down to the most minor detail. If an injury occurs on the premises, don’t automatically assume that it is work related. In Quality Bicycle, claimant’s admissions that his knee simply popped, he felt pain and then fell to the pavement were key to the employer’s denial and ultimate success. Accordingly, we strongly recommend that an employer’s injury report include space for the employee to state, in his/her own words, what happened and what caused the injury.

To learn more about what injuries are and are not work related, join us on June 3, 2016 for our 26th Annual Labor and Employment Seminar.

On April 17, 2016, Pennsylvania Governor Tom Wolf signed the Medical Marijuana Act (MMA), which legalizes medicinal marijuana in Pennsylvania. The MMA, which takes effect on May 17, 2016, includes various provisions related to employment, and we have received many questions regarding what employers must, can and cannot do as a result of the new law. The simple answer is that, for the time being, we do not believe that employers are required to take immediate action. No immediate changes to your drug and alcohol policies or how you deal with drugs in the workplace are necessary for now, but stay tuned.

The MMA requires the Department of Health (“Department”) to promulgate full regulations within 18 months, and the Department is also required to begin publishing temporary regulations no later than six months from the Act’s effective date. Accordingly, we expect further guidance before the end of 2016 and anticipate frequent changes to the rules and regulations surrounding the MMA and its interpretation thereafter.

So, what do you need to know about the law now?

  • The MMA contains an employment anti-discrimination provision that states as follows:

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. MMA §2103(b)(1).

This anti-discrimination provision seems clear; however, it does raise some unanswered questions.  Although more than 20 other states have legalized medicinal marijuana, for purposes of the MMA, an “individual who is certified to use medical marijuana” seemingly refers only to individuals certified under Pennsylvania law. It is unclear whether an employee who is certified in another state would be entitled to the protection of §2103(b)(1).  Also, keep in mind that it will take some time for Pennsylvania to implement the regulatory framework to begin the certification process, set up dispensaries and begin actually distributing marijuana.

  • Employers are not required to accommodate the use of medical marijuana at work and employers retain the ability to discipline employees for using marijuana at work. Along these lines, the MMA provides:

Nothing in this Act shall require an employer to make an accommodation for the use of medical marijuana on the property or premises of any place of employment. This Act shall in no way limit an employer’s ability 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. MMA §2103(b)(2).

While employers retain the right to discipline users of medical marijuana if they are “under the influence” at work, we do not yet know what is meant by “under the influence.” It remains to be seen which definition of “under the influence” will apply to potential employee discipline.

  • The MMA prohibits certified users from performing certain safety-sensitive jobs while “under the influence” of medicinal marijuana, including: (1) operating or being in physical control of chemicals which require a permit issued by the federal government, state government, federal agency or state agency; (2) operating or being in control of high-voltage electricity or any other public utility; (3) performing any employment duties at heights or in confined spaces, including, but not limited to, mining; (4) performing tasks that the employer deems life-threatening to either the employee or any employees of the employer; and (5) performing any duty that could result in a public health or safety risk. MMA §510.
  • The MMA does not require employers to “commit an act that would put the employer or any person acting on its behalf in violation of federal law.” MMA §2103(b)(3). For example, an employer would not be required to accommodate medicinal marijuana use if such accommodation violates federal DOT regulations.
  • The MMA does not, currently, supersede an employer’s rights under the ADA. For example, under current interpretations of the law, employers are not prohibited by the ADA from discharging an employee who tests positive for marijuana, even if the use is pursuant to a valid prescription. This could change, however, as the MMA evolves and as we further understand how “under the influence” will be defined in Pennsylvania. Further, the EEOC may change its position on the protected nature of medical marijuana as more states allow its use.

As with any new law, we have much left to learn. The McNees Labor and Employment Group will be closely monitoring the implementation of the temporary and permanent MMA regulations. We will keep you advised as things develop and are hopeful that the temporary regulations will address some of our unanswered questions, including: (1) what is meant by “under the influence;” and (2) whether the anti-discrimination provisions apply to those certified to use medical marijuana in other states. In the meantime, should you have specific questions about the law, your policies or your employees, please do not hesitate to contact any member of the McNees L&E Group.

In 2010, the Pennsylvania Legislature enacted the Construction Workplace Misclassification Act (CWMA), which, in part, attempted to clarify who is and is not an independent contractor (in the construction industry) for the purposes of workers’ compensation coverage.

Section 3(a) of the CWMA provides: “For purposes of workers’ compensation . . . an individual who performs services in the construction industry for remuneration is an independent contractor only if: (1) the individual has a written contract to perform such services; (2) the individual is free from control or direction over performance of such services both under the contract of service and in fact; and (3) as to such services, the individual is customarily engaged in an independently established trade, occupation, profession or business.” 43 P.S. §933.3(a).

To the extent an individual does not meet such definition, the individual will be deemed an employee and the general contractor/employer will be responsible for maintaining and providing workers’ compensation coverage for such individual.  Recently, in Staron v. Workers’ Compensation Appeal Board (Farrier), the Commonwealth Court clarified the first prong of the definition – the “written contract” requirement.

In Staron, the claimant responded to an advertisement by Lee’s Metal Roof Coatings and Painting (“Lee’s”) for a painter.  Claimant was allegedly a self-employed subcontractor with 20 years experience in painting and roof work.  Claimant began working for Lee’s, using his own tools and equipment and taking very minimal direction from Lee’s.  Approximately two months into the relationship, claimant fell off a roof and was injured.  Lee’s presented claimant with a written independent contractor agreement upon his release from the hospital, which claimant freely signed.  Claimant nonetheless sought workers’ compensation benefits from Lee’s, which were granted by the Workers’ Compensation Judge and affirmed by the Workers’ Compensation Appeal Board on the basis that claimant was an employee of Lee’s and not an independent contractor.  On appeal, the Commonwealth Court found that claimant was not an independent contractor, as defined by the CWMA, because there was no written contract between Lee’s and the claimant at the time claimant was injured.  It did not matter to the Court that claimant voluntarily signed the agreement after his injury.  According to the Court, the written independent contractor agreement contemplated by the CWMA must be in place prior to any injury being sustained in order to satisfy the “written contract” requirement of the Act.

Note, the Court did not say that the contract must be signed before any work is commenced in order to render the contractor an independent contractor.  The Court simply said that the agreement must be signed prior to the contractor sustaining an injury.  Nonetheless, the best practice would be for businesses employing independent contractors and sub-contractors, particularly in the construction trades, to ensure that Independent/Subcontractor Agreements are executed prior to the commencement of any work being performed.  Remember though that the existence of a written agreement will not necessarily carry the day in a dispute over the classification of an injured worker.  The written agreement is only one part of the test.  Accordingly, businesses in the construction trade should be mindful of the other CWMA requirements for independent contractor classification and should periodically review all independent contractor and subcontractor relationships to ensure compliance with the CWMA.

In 2003, the Pennsylvania General Assembly amended Section 601 of the Workers’ Compensation Act to expand the definition of the word “employee” to include employees who, while in the course and scope of their employment, provide aid to a person in order to (1) prevent the commission of a crime, (2) apprehend someone suspected of having committed a crime or (3) render emergency care, first aid or rescue at the scene of an emergency.  77 P.S. §1031(a)(10).  This amendment is commonly referred to as the Good Samaritan amendment and has historically been limited in its application – applying to volunteer emergency personnel only.  Recently, however, the Commonwealth Court rejected this limitation and effectively expanded the Good Samaritan amendment to apply to any employee who provides “Good Samaritan” type aid while in the course and scope of his or her employment.

In Pipeline Systems, Inc. v. WCAB (Pound), the Claimant was injured when he responded to a call for help – “man down. Jack fell.”  Claimant was assisting with the installation of pipelines and manholes at a borough sanitation plant.  Near the pipeline installation was a concrete pit.  On the day of the incident, Claimant and others responded to the call for help and found a borough employee lying at the bottom of the pit.  Claimant and others descended a ladder into the pit in an effort to help the man, but unfortunately discovered that the man had died in the fall.  While climbing out of the pit, Claimant lost consciousness and fell 20 feet, injuring his left leg, knee, foot, ribs, back and lung.  He sought workers’ compensation benefits, but the employer denied that he was entitled to benefits, arguing that Claimant went outside the course and scope of his employment when he decided to be a Good Samaritan.  Employer relied on the Supreme Court’s decision in Kmart Corp. v. WCAB (Fitzsimmons).   In Kmart Corp., the Supreme Court held that a Kmart employee was not in the course and scope of her employment when she was injured while rendering aid to a fellow employee, who was in the Kmart food court on her lunch break and was being attacked by her estranged boyfriend.  In litigation, the employer also argued that the Good Samaritan amendment to the Act did not apply to Claimant, as Claimant was not volunteer emergency personnel.

The Commonwealth Court, in Pipeline Systems, rejected the employer’s arguments, citing the Good Samaritan amendment, which was adopted three years after the Supreme Court decided the Kmart case.  The Court found that the amendment was not limited to volunteer emergency personnel and could apply to any employee who renders aid to another while in the course and scope of his/her employment.  In this case, the Court found that Claimant was within the course and scope of his employment when he was injured, because he was “in the midst of his work” when he responded to the call for help, climbed into the pit, and fell.

In light of this ruling, employers will be unable to deny benefits for injuries sustained by Good Samaritan employees (as defined in Section 601), unless they can show that the employee was outside the course and scope of employment when the Good Samaritan aid was provided.  Under most circumstances, this will be a difficult burden for the employer to meet.  Accordingly, it is our recommendation that employers consider adopting Good Samaritan policies.  Employees should be told to refrain from putting themselves or others at risk and instead follow protocols for contacting emergency personnel and reporting the emergency to the appropriate person within the company.  Having such a policy in place may not preclude an employee from receiving benefits if he or she violates the policy, provides aid and is injured but it could dissuade employees from intervening in dangerous situations that they are not trained to deal with, thereby helping to reduce the possibility of an injury being suffered.  Additionally, under the right set of facts, the employee could be disciplined for violating a positive work rule, which may preclude him or her from receiving workers’ compensation wage loss benefits.