In a case of first impression, the Superior Court docket of Pennsylvania has decided that staff can sue their employers for claims beneath 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 personal proper of motion. In doing so, the courtroom 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 permit 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 Methods
Within the Palmiter case, an worker working as a medical assistant filed a lawsuit within the Court docket of Frequent Pleas of Lackawanna County (the trial courtroom) towards her employer after she was fired for testing optimistic for marijuana on an employer-directed drug take a look at. 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 beneath the MMA and a declare for frequent legislation wrongful termination in violation of public coverage. The employer filed preliminary objections, asserting there was no personal proper of motion beneath the MMA and no clear public coverage underlying the worker’s claims. The trial courtroom disagreed, and the employer appealed to the Superior Court docket of Pennsylvania.
Trial Court docket’s Determination Upheld
The Superior Court docket of Pennsylvania affirmed the trial courtroom’s resolution, holding there may be an implied personal proper of motion beneath the MMA. The courtroom rejected the employer’s argument that the Pennsylvania Legislature didn’t intend to create a personal proper of motion for workers as a result of it delegated enforcement to the Pennsylvania Division of Well being. In reaching this resolution, the courtroom discovered that as a result of the Division’s enforcement authority was not unique and didn’t present a grievance process for aggrieved staff, the delegation of some enforcement authority to the Division didn’t proof legislative intent towards a personal proper of motion.
As a substitute, the courtroom held that by enacting the MMA, the Pennsylvania Legislature proclaimed a public coverage prohibiting discrimination based mostly on medical marijuana use. Making use of ideas of statutory interpretation, the courtroom decided that although the legislature didn’t achieve this explicitly, it meant to create a personal proper of motion for workers who’re discriminated towards by their employers based mostly on their standing as licensed medical marijuana customers.
Relating to the wrongful discharge declare, the courtroom decided that the MMA “evidences a transparent public coverage towards termination of employment and different forms of discrimination based mostly on licensed marijuana use off the employment premises.” Accordingly, the courtroom decided that staff may also assert claims for wrongful termination in violation of public coverage for termination for off-premises medical marijuana use.
Palmiter is a big resolution as a result of it affirmatively states that there’s a personal proper of motion beneath the MMA. It additionally confirms that an worker can carry a wrongful termination declare when an employer terminates their employment – or presumably even when an employer fails to rent them – resulting from their off-premises use of medical marijuana, even when antagonistic motion relies on a optimistic office marijuana take a look at consequence.
It’s nonetheless unclear what damages can be found beneath the MMA, however the trial courtroom in Palmiter implied that again pay and entrance pay could be out there 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 fastidiously consider how they accommodate medical marijuana customers within the office and their drug-testing insurance policies.
Relating to the latter, as these evaluations proceed, it bears emphasis what Palmiter didn’t deal with, particularly, the varied secure 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 beneath the affect of medical marijuana within the office or for working whereas beneath the affect of medical marijuana when the worker’s conduct falls under 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 particular person performing on its behalf in violation of federal legislation (e.g., necessary U.S. Division of Transportation drug-testing laws);
- an employer could prohibit a medical marijuana affected person from performing any job the employer deems life-threatening to both the patient-employee or to some other of its staff, whereas the affected person is beneath 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 beneath 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 stage in Pennsylvania includes any detectible stage) or whether or not the employee would have entry to managed substances, through which case DEA laws could apply.
The contours of a meritorious declare beneath Palmiter thus stay to be determined. Nevertheless, the times when a easy federal illegality coverage sufficed and no personal reason for motion was out there to the plaintiff are presently foreclosed by the appellate courtroom’s resolution. Additional, whereas it may be troublesome to acquire overview by the Pennsylvania Supreme Court docket, it’s doubtless that it’s going to finally weigh in on this vital situation.