New Pennsylvania Medical Marijuana Lawsuit May Someday Provide Guidance to Employers

Q: Are there any new cases involving Pennsylvania’s Medical Marijuana Act in the context of employment?

A: Given that state-sanctioned use of medical marijuana is relatively new, there are few cases interpreting Pennsylvania’s medical marijuana law with regard to employment. This is why a recently filed Pennsylvania lawsuit could have a far-reaching impact on employers.

On October 10, 2019, Derek Gsell of Moon Township, Pennsylvania filed a lawsuit against a Pennsylvania electric company (the “Company”) in the Court of Common Pleas of Allegheny County, Pennsylvania, docketed as No. GD-19-014418. Mr. Gsell alleges that the Company improperly rescinded a job offer because he tested positive for THC (the active ingredient in marijuana) in a pre-employment drug test. As he informed the Company, Mr. Gsell possesses a Pennsylvania medical marijuana card, which allows him to legally purchase and use marijuana for medical purposes.

According to the complaint, the Company offered Mr. Gsell employment in August 2019; however, the offer was “contingent upon successful completion of a criminal background check, reference check, and pre-employment drug screen.” Mr. Gsell underwent a pre-employment hair follicle drug test and he was informed that he had “failed” the test due to the detection of THC. The complaint states that written correspondence from the Company informed Mr. Gsell that the job offer was rescinded and the position was “no longer available due to your positive drug screen results.”

In his complaint, Mr. Gsell claims that the Company acted with “malice or reckless indifference” to his rights under Pennsylvania’s Medical Marijuana Act (“PMMA”), which established the state’s medical marijuana program in 2016. Mr. Gsell alleges that his job offer was rescinded solely because he was certified to use medical marijuana, noting that he did not seek to use medical marijuana on the Company’s property or to be under the influence of marijuana while at work.

The PMMA permits the use and possession of medical marijuana in authorized forms by patients with a practitioner’s certificate who suffer from a serious medical condition. Possession is lawful for patients and caregivers who have a valid identification card. The Act provides protections for employees certified to use medical marijuana and in particular, it prohibits employers from discriminating or taking an adverse action against an employee “solely on the basis of the employee’s status as an individual who is certified to use medical marijuana.”

Given the limited issues presented in Mr. Gsell’s one-count complaint, this lawsuit will likely be a good test case for enforcing an employee’s (or a prospective employee’s) rights under the PMMA. The Company has not yet filed a response to the complaint.

We will continue to monitor the case’s progress.  In the meantime, if one of your employees or a prospective employee is a user of medical marijuana and you have concerns about your company’s obligations and/or responsibilities with regard to such use, contact any member of the Pepper Hamilton Labor & Employment team for guidance and advice.

— Leigh McMonigle