In a case of first impression, the Superior Courtroom of Pennsylvania has decided that staff can sue their employers for claims underneath the Pennsylvania Medical Marijuana Act (MMA). Palmiter v. Commonwealth Well being Sys., Inc., No. 398 MDA 2020, 2021 PA Tremendous. 155 (Pa. Tremendous. Ct. Aug. 5, 2021). That is the primary binding opinion in Pennsylvania establishing an MMA non-public proper of motion. In doing so, the court docket adopted the lead of quite a few courts across the nation, together with these in Arizona, Connecticut, Delaware, and Rhode Island, which have acknowledged that their respective state medical marijuana legal guidelines enable staff to sue their employers.1
The Pennsylvania Medical Marijuana Act
Along with permitting qualifying sufferers to acquire and use medical marijuana, the MMA contains sure protections for workers licensed to make use of medical marijuana. Particularly, it prohibits employers from “discharg[ing], threaten[ing], refus[ing] to rent or in any other case discriminat[ing] towards an worker . . . solely on the premise of such an worker’s standing as a person who’s licensed to make use of medical marijuana.” The MMA doesn’t explicitly state, nevertheless, that staff could sue their employers for violations of the MMA.
Palmiter v. Commonwealth Well being Programs
Within the Palmiter case, an worker working as a medical assistant filed a lawsuit within the Courtroom of Frequent Pleas of Lackawanna County (the trial court docket) towards her employer after she was fired for testing optimistic for marijuana on an employer-directed drug check. Palmiter v. Commonwealth Well being Sys., Inc., 19-CV-1315 (Lackawanna County Nov. 22, 2019). The worker asserted a number of claims, together with a declare underneath the MMA and a declare for frequent regulation wrongful termination in violation of public coverage. The employer filed preliminary objections, asserting there was no non-public proper of motion underneath the MMA and no clear public coverage underlying the worker’s claims. The trial court docket disagreed, and the employer appealed to the Superior Courtroom of Pennsylvania.
Trial Courtroom’s Determination Upheld
The Superior Courtroom of Pennsylvania affirmed the trial court docket’s determination, holding there’s an implied non-public proper of motion underneath the MMA. The court docket rejected the employer’s argument that the Pennsylvania Legislature didn’t intend to create a non-public proper of motion for workers as a result of it delegated enforcement to the Pennsylvania Division of Well being. In reaching this determination, the court docket discovered that as a result of the Division’s enforcement authority was not unique and didn’t present a criticism process for aggrieved staff, the delegation of some enforcement authority to the Division didn’t proof legislative intent towards a non-public proper of motion.
As an alternative, the court docket held that by enacting the MMA, the Pennsylvania Legislature proclaimed a public coverage prohibiting discrimination primarily based on medical marijuana use. Making use of ideas of statutory interpretation, the court docket decided that despite the fact that the legislature didn’t accomplish that explicitly, it meant to create a non-public proper of motion for workers who’re discriminated towards by their employers primarily based on their standing as licensed medical marijuana customers.
Concerning the wrongful discharge declare, the court docket decided that the MMA “evidences a transparent public coverage towards termination of employment and different sorts of discrimination primarily based on licensed marijuana use off the employment premises.” Accordingly, the court docket decided that staff may also assert claims for wrongful termination in violation of public coverage for termination for off-premises medical marijuana use.
Employer Takeaways
Palmiter is a big determination as a result of it affirmatively states that there’s a non-public proper of motion underneath the MMA. It additionally confirms that an worker can carry a wrongful termination declare when an employer terminates their employment – or probably even when an employer fails to rent them – resulting from their off-premises use of medical marijuana, even when antagonistic motion is predicated on a optimistic office marijuana check consequence.
It’s nonetheless unclear what damages can be found underneath the MMA, however the trial court docket in Palmiter implied that again pay and entrance pay could be obtainable to profitable litigants. Moreover, punitive damages can be found for wrongful termination claims in Pennsylvania, rising an employer’s potential legal responsibility. Following Palmiter, Pennsylvania employers ought to rigorously consider how they accommodate medical marijuana customers within the office and their drug-testing insurance policies.
Concerning the latter, as these evaluations proceed, it bears emphasis what Palmiter didn’t deal with, specifically, the assorted protected harbors constructed into the MMA for employers together with:
- employers needn’t accommodate medical marijuana use on the property or premises of employment;
- the MMA under no circumstances limits an employer’s potential to self-discipline an worker for being underneath the affect of medical marijuana within the office or for working whereas underneath the affect of medical marijuana when the worker’s conduct falls beneath the usual of care usually accepted for that place;
- the MMA doesn’t require an employer to commit any act that may put the employer or any individual appearing on its behalf in violation of federal regulation (e.g., necessary U.S. Division of Transportation drug-testing rules);
- an employer could prohibit a medical marijuana affected person from performing any activity the employer deems life-threatening to both the patient-employee or to every other of its staff, whereas the affected person is underneath the affect of medical marijuana; and,
- an employer could prohibit a affected person from performing any obligation that would end in a public well being or security danger whereas underneath the affect of medical marijuana.
Different potential points that employers should grapple with embody whether or not the job includes common driving (the DUI THC degree in Pennsylvania includes any detectible degree) or whether or not the employee would have entry to managed substances, wherein case DEA rules could apply.
The contours of a meritorious declare underneath Palmiter thus stay to be determined. Nonetheless, the times when a easy federal illegality coverage sufficed and no non-public reason for motion was obtainable to the plaintiff are presently foreclosed by the appellate court docket’s determination. Additional, whereas it may be tough to acquire evaluate by the Pennsylvania Supreme Courtroom, it’s seemingly that it’s going to finally weigh in on this vital problem.
Footnotes
