Marijuana is currently categorized as a “Schedule I”[1] substance under the Controlled Substance, Drug, Device, and Cosmetic Act (“CSA”), rendering it illegal for both medicinal and recreational use under Federal law. Marijuana is illegal for recreation use under Pennsylvania law. However, a Pennsylvania resident is permitted to use marijuana for medicinal purposes.
An individual who has a serious medical condition[2], meets the requirements of the Pennsylvania Medical Marijuana Act (“MMA”), and is a resident of the Commonwealth of Pennsylvania is permitted to obtain a medical marijuana card. 35 P.S. § 10231.103.
Under the MMA, an employer is prohibited from taking an adverse employment action against an employer solely because the employee is certified to use medical marijuana. 35 P.S. § 10231.2103(b)(1). Unlike the Americans with Disabilities Act, the Pennsylvania Human Relations Act, and the Philadelphia Fair Practices Ordinance, an employee-plaintiff does not have to exhaust a statutory remedy to sue an employer-defendant for an employer-defendant’s adverse employment action motivated by the employee-plaintiff’s status as a certified medical marijuana user. Palmiter v. Commonwealth Health Systems, Inc., 260 A.3d 967 (Pa. Super. 2021). However, unlike the Americans with Disabilities Act, there is no provision within the Medical Marijuana Act that shifts payment of attorney fees or provides for punitive damages. This means that, unlike other types of Employment Law cases, damages are likely limited to compensatory damages and the American Rule[3] applies.
Further, an employer is under no legal obligation to provide any accommodation for the use of medical marijuana at the workplace, nor prohibit disciplining an employee for being under the influence of medical marijuana “when the employee’s conduct falls below the standard of care normally associated for that position.” 35 P.S. § 10231.2103(b)(2). Further, a medical marijuana employee is restricted from working in heights, confined spaces, any work that may result in public health or safety risk, or any employer-designated life-threatening tasks. 35 P.S. § 10231.51. Finally, a medical marijuana employee is prohibited from working with “chemicals which require a permit issued by the Federal Government or a state government or an agency of the Federal Government or a state government” or “high-voltage or any other public utility” while “under the influence with a blood content of more than 10 nanograms of active tetrahydrocannabinol (“THC”) per milliliter of blood in serum.” Id.
An employer’s prohibition of marijuana use does not override the protection of the MMA. Jack Lehr Electric v. Unemployment Compensation Board of Review, 255 A.3d 712 (Pa. Cmwlth. 2021). To trigger the protection of the MMA, the employer must be on notice of the employee’s medical marijuana card prior to the employee taking a drug test. Id.
With the framework of the MMA laid out, how should an employment attorney navigate the intersection of employment law and the MMA? My thoughts are as follows:
- Tie the adverse employment action to the Americans with Disabilities Act (“ADA”) and the Pennsylvania Human Relations Act (“PHRA”). A holder of a medical marijuana card necessarily suffers from a serious medical condition which arises to the level of a disability. The employer will be on notice of the disability in virtue of the medical marijuana card.
- Exhaust the administrative statutory requirement of filing with the Equal Employment Opportunity Commission (“EEOC”) and the Pennsylvania Human Relations Commission (“PHRC”). If the case arises out of Philadelphia, exhaust the statutory requirement of the Philadelphia Fair Practices Ordinance (“PFPO”) by filing with the Philadelphia Commission on Human Relations (“PCHR”) as well. There is no statute of limitations listed within the MMA, so that claim can be alleged at the time you file a complaint. Additionally, through the Americans with Disabilities Act, you may enjoy the benefit of punitive damages. With the ADA, PHRA, and PFPO, attorneys fees are able to be sought as well.
Do not fear the lack of explicit enforcement mechanisms under the MMA. Fall back on the ADA, PHRA, and PFPO, and follow the traditional path of litigation in order to ensure your client does not go uncompensated for suffering discrimination for using a lawfully prescribed medication to treat a disability.
The Law Firm of DiOrio & Sereni, LLP is a full-service law firm in Media, Delaware County, Pennsylvania. We strive to help people, businesses and institutions throughout Southeastern Pennsylvania solve legal problems – and even prevent legal problems before they occur. To learn more about the full range of our specific practice areas, please visit www.dioriosereni.com or contact Paul M. Carrion, Esquire at 610-565-5700 or at [email protected].
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[1] The Biden administration has proposed transferring marijuana to a “Schedule III” substance. If this is done, this would not change the federal legality of its recreational use.
[2] An enumerated list of “serious medical conditions” may be found at 35 P.S. § 10231.103.
[3] Each party is responsible for the payment of their own attorney fees.
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