Employment Discrimination in Pennsylvania – What Rights Does A Medical Cannabis Patient Possess? By Patrick K. Nightingale, Esq., and Joe Pometto, Esq.

Pennsylvania legalized medical cannabis when Governor Tom Wolf signed the Medical Marijuana Act in to law in April, 2016.  Medical cannabis patients have been able to access legal medical cannabis since February, 2018.  Over 250,000 patients are actively participating and purchasing medical cannabis products.

As with any new law many questions arise relative to interpreting certain provisions and how they affect individuals or classes of people.  This is especially true when addressing the employment discrimination protections for Pennsylvania medical cannabis patients.

Pennsylvania’s medical cannabis law addresses employment issues in Section 510, which places restrictions on certain types of employment, and Section 2103, which provides employment discrimination protections.

35 Pa.C.S.A. §510 sets forth:

A patient may not operate or be in physical control of any of the following while under the influence with a blood content of more than 10 nanograms of active tetrahydrocannabis per milliliter of blood in serum:

(i) 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.

(ii) High-voltage electricity or any other public utility.

(2) A patient may not perform any employment duties at heights or in confined spaces, including, but not limited to, mining while under the influence of medical marijuana.

(3) A patient may be prohibited by an employer from performing any task which the employer deems life-threatening, to either the employee or any of the employees of the employer, while under the influence of medical marijuana. The prohibition shall not be deemed an adverse employment decision even if the prohibition results in financial harm for the patient.

(4) A patient may be prohibited by an employer from performing any duty which could result in a public health or safety risk while under the influence of medical marijuana. The prohibition shall not be deemed an adverse employment decision even if the prohibition results in financial harm for the patient.

35 Pa.C.S.A. §2103(b) Employment sets forth:

(1) No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an 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.

(2) Nothing in this act shall require an employer to make any accommodation of 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.

(3) Nothing in this act shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of Federal law.

These sections, taken together, raise numerous questions for patient employees and employers alike.  What does it mean that an employer is not required to violate Federal law?  What is a “public health or safety risk” and who makes that determination?  What penalties will an employer suffer who discriminates against a patient employee solely for medical cannabis patient status?

The first question is whether Section 2103(b) even allows a patient employee to sue her employer for discrimination.  A recent decision by a federal court in the Eastern District of Pennsylvania recently ruled that Pennsylvania’s Medical Marijuana Act created an implied cause of action affording the patient employee the right to bring a lawsuit against the employer.

In Heller v. Thomas Jefferson University Hospitals, Inc. the defendant moved to dismiss the lawsuit claiming the Act did not specifically create a right to sue.  Judge Pappert noted that other states with similar employment discrimination language have found an implied cause of action as has the Court of Common Pleas in Lackawanna County, PA.  Judge Pappert analyzed whether the Pennsylvania Supreme Court would likely find that the Legislature intended to create a cause of action.  His Honor found that an implied cause of action was “consistent with the purpose [and] spirit” of the Act thus allowing the lawsuit to proceed on its merits.

The Heller case is encouraging, because traditionally courts have been hesitant to grant protections to employees, or to even allow a lawsuit, when medical marijuana is involved. An important caveat to these protections, however, is that the type of job or work is highly important as to whether an employer can discriminate on the basis of medical marijuana.

For example, 35 Pa.C.S.A. §510, allows employers to discriminate against people on medical marijuana, if they work with chemicals, high voltage electricity production or jobs that require someone to work in closed spaces and at heights. Thus, many “blue collar” employees may not be protected from being fired or not hired due to medical marijuana usage. Further, where there is a risk of life-threatening injury on the job, an employer can refuse to hire a person on medical marijuana. This likely means workers in steel mills, factories or on construction sites do not receive the protections of this law. However, if you work in the service industry, hospitality or at a desk job, you likely get the full protections granted. There will need to be further case law produced before we know exactly what jobs are protected and which ones are not.

Next, the type of punishments under the law for employers who do wrongly discriminate against medical marijuana usage is unclear. But that does not mean we have no idea. In traditional employment discrimination cases, such as those that center on sexual harassment or disabilities, there are a suit of punishments that the court may allow. These include requiring the employer to pay an employee lost back wages, lost future wages, any money they lost out of pocket due to the discrimination, plus attorney’s fees and special damages that specifically “punish” an employer for egregious behavior. Although it is unlikely that attorney’s fees would be required absent a specific provision, a person who was discriminated against would likely be able to force the employer to pay lost wages and any other money lost as a result of the discrimination.

On a whole, the introduction of Pennsylvania’s medical cannabis does carve out some protections for employees in a work setting. This is a good thing, because without specific provisions, employers would have likely been allowed to terminate or refuse to hire anyone with a medical marijuana card. Recent case law, such as the Heller case also provides encouraging signs that the courts are also willing to protect employees with medical cannabis prescription. While this protection probably does not include jobs with high risks of danger, it will protect employees in the service industry and in other office-type jobs. And if such an employer gets out of line, they can likely be hit with harsh penalties that include the payment of any money the employee lost as a result of the termination. Hopefully, in the coming months and years the protections become expanded and clearer so that people can get the medical cannabis treatment they need, without fearing that they will lose their job.

If you believe you have been the victim of employment discrimination due to your status as a medical cannabis patient please do not hesitate to contact us for a free and confidential consultation.

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