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 Gsell alleges that the Company improperly rescinded a job offer because he tested positive for THC (the active ingredient in marijuana) in a pre-employment drug test.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 Gsell that the job offer was rescinded and the position was “no longer available due to your positive drug screen results.”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 Gsell alleges that his job offer was rescinded solely because he was certified to use medical marijuana, noting that he did not seek to use medical marijuana on the Company’s property or to be under the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

New Jersey Employers May Be Required to Accommodate an Employee’s Use of Medical Marijuana Outside the Workplace

Q.  Now that medical marijuana is legal in New Jersey, does the Law Against Discrimination require employers to provide an accommodation for medical marijuana use?

A.  While New Jersey employers are not required to accommodate the use of medical marijuana in the workplace, they may be required to accommodate an employee’s off-duty use of medical marijuana outside of the workplace, according to a recent decision. On March 27, 2019, the New Jersey Appellate Division reversed a lower court’s ruling that state law does not provide employment protections for medical marijuana users. Although the court affirmed that employers are not required to accommodate an employee’s use of medical marijuana in the workplace, the court found that failure to accommodate off-duty use of medical marijuana outside the workplace could give rise to liability under the New Jersey Law Against Discrimination (NJLAD).

In Wild v. Carriage Funeral Holdings, Inc., the plaintiff, a funeral director, alleged that he was discriminated against when the employer fired him for using medical marijuana, despite the fact that he had a prescription to use it to treat pain caused by cancer.  In 2016, the plaintiff was injured in a car accident while on the job, resulting in a trip to the emergency room.  At the hospital, he informed the treating staff that he had a license to use medical marijuana.  However, the physician in charge did not request a drug test based on an assessment that the plaintiff was not impaired at the time of the accident.

Despite the doctor’s assessment, the employer later requested that the plaintiff take a drug test, to which the plaintiff reluctantly agreed. After he failed the test, the plaintiff was terminated.  The employer first told the plaintiff that he was being terminated because the test revealed that he had drugs in his system.  However, the employer later sent a letter stating that the plaintiff was terminated not because of his use of medical marijuana, but rather because he failed to disclose his use of a medication which might affect his ability to safely perform his job duties, as required by the employer’s policy.

The plaintiff then filed suit, alleging that the employer violated the NJLAD by terminating his employment based on a positive drug test, given that he was prescribed medical marijuana by his doctor, as permitted by the New Jersey Compassionate Use of Medical Marijuana Act (CUMMA). In granting the employer’s motion to dismiss, the trial judge determined that CUMMA carries no employment-related protections for licensed users of medical marijuana.  The lower court explained that the termination was justified based on a positive drug test and a violation of the employer’s drug use policy.

Reversing the lower court’s decision, the Appellate Division first rejected the plaintiff’s argument that the disability discrimination protections under CUMMA and the NJLAD were in conflict, pointing to the language in CUMMA providing that “[n]othing in this act shall be construed to require . . . an employer to accommodate the medical use of marijuana in any workplace.” As the court explained, “[t]hese words are unambiguous; they require no interpretation and permit no deviation.”  The court emphasized that CUMMA “neither created new employment rights nor destroyed existing employment rights” that may be available to employees under other statutes like the NJLAD.

Next, the Court noted that the plaintiff did not claim that the employer failed to accommodate his use of medical marijuana in the workplace, but rather, that the employer failed to accommodate his off-duty use of medical marijuana.  As the court explained, even if CUMMA does not obligate employers to provide a reasonable accommodation for medical marijuana use in the workplace, such an obligation may arise under the NJLAD.  Given that the plaintiff did not request an accommodation to use medical marijuana in the workplace, the Appellate Division concluded that his NJLAD claim should not have been dismissed.  The Appellate Division reversed and remanded the case for further proceedings on the question of whether an employee’s off-duty use of medical marijuana should have been accommodated under the facts presented.

The Appellate Division’s decision in Wild v. Carriage Funeral Holdings, Inc. indicates that, while CUMMA does not require employers to accommodate medical marijuana use in the workplace, the failure to accommodate a medical marijuana user, at least when the use is outside of the workplace and during non-work hours, could lead to liability under  the NJLAD.

At the very least, employers should exercise caution when taking an adverse employment action against an employee who has a prescription for medical marijuana following a positive test. Because drug tests can detect marijuana in a person’s body for some period of time after it is used, a positive test may reveal an employee’s use of marijuana during non-working hours.  This raises the possibility that, like in Wild, an employee who is not impaired at the time of a workplace accident could nevertheless test positive for marijuana use afterwards, based on use that occurred outside the workplace.  Given that the NJLAD may require an accommodation for an employee’s off-duty use of medical marijuana, employers should consult with legal counsel prior to disciplining or terminating an employee who tests positive for marijuana.

Rogers Stevens

New York City Passes Law Prohibiting Pre-Employment Marijuana Testing

Q: I heard New York City is banning employers from doing pre-employment drug testing for marijuana. What do I need to know?

A: Effective May 10, 2020, New York City employers are prohibited from testing prospective employees for marijuana or tetrahydrocannabinols (the active ingredient in marijuana) as a condition of employment.  The law applies to all prospective employees in New York City, regardless of whether the employer is located in New York City.

The law has a number of exceptions, including for positions that require a commercial driver’s license or the supervision or care of children, medical patients, or vulnerable persons. The law also does not apply to drug testing required by certain contracts and laws, including federal or state statutes, regulations, or orders that require drug testing for the purpose of safety or security.

The law reflects the growing acceptance of marijuana in New York, both for recreational and medicinal use. Under existing New York law, possession of up to 25 grams of marijuana has been decriminalized, and it is legal for a certified patient to possess and use medical marijuana.  Existing New York law also specifically protects registered certified medical marijuana users from adverse employment actions based on their health conditions and associated marijuana use.

The law itself is quite short, and leaves a number of questions unanswered, such as whether the law has any impact on marijuana testing of current employees, and whether the law applies to New York City residents who apply for positions outside of the city. The City is expected to release rules addressing such details in advance of the effective date.

To prepare for the new law, employers should update employment applications, job postings, and drug testing policies. Employers should also analyze whether any of their positions are exempt from the new law.

Jessica Rothenberg

Employers May Have to Accommodate Medical Marijuana Users Under Some State Laws

Q: Can my company refuse to hire or terminate an individual because the individual is a medical marijuana user?

A: Not necessarily.  While we have not seen any laws to date explicitly requiring employers to accommodate employees’ use of marijuana for medicinal purposes while at work, in some states at least, employers may not terminate employees for their use of medical marijuana outside of the workplace, even if it means that the employee tests positive in a drug screen.

According to the National Conference on State Legislatures, as of January 23, 2019, a total of 33 states and Washington, D.C.—including every state in the Mid-Atlantic—has a comprehensive medical marijuana program. At the federal level, marijuana still is considered to be an illegal drug under the Controlled Substances Act.  However, the U.S. Department of Justice’s current guidance on prosecution for marijuana-related offenses allows federal prosecutors to decide how and whether to prosecute marijuana-related crimes.

Many state laws governing the use of medical marijuana contain provisions addressing the intersection of medical marijuana and employment. While state governments have an interest in protecting users of medical marijuana from discrimination based on their status as a medical marijuana user, they also have recognized the duty of employers to protect co-workers and the general public by ensuring that medical marijuana users do not come to work or operate dangerous equipment while under the influence of marijuana.

The Pennsylvania Medical Marijuana Act, for example, provides that employers cannot discriminate or retaliate against an employee solely on the basis of the “employee’s status as an individual who is certified to use medical marijuana.” At the same time, employers are not required to accommodate the use of medical marijuana on employer property or premises.  Furthermore, Pennsylvania’s law permits employers to discipline or terminate an employee who is under the influence of medical marijuana in the workplace or who performs work while under the influence of medical marijuana “when the employee’s conduct falls below the standard of care normally accepted for that position.”

Given that state-sanctioned use of medical marijuana is relatively new, there are few cases interpreting state medical marijuana laws with regard to employment. The case Noffsinger v. SSC Niantic Operating Co., LLC, 338 F. Supp. 3d 78 (D. Conn. 2018), is a recent federal court decision interpreting Connecticut’s medical marijuana law.  Connecticut’s law contains an “anti-discrimination provision” that bars an employer from refusing to hire a person or from “discharging, penalizing or threatening an employee” solely because of the person’s status as a “qualifying medical marijuana patient under state law.” The statute also provides, however, that an employer could refuse to hire a medical marijuana user if “required by federal law or required to obtain funding.”

In Noffsinger, the plaintiff accepted a job offer (contingent on passing a drug test) from the defendant employer.  Prior to taking the drug test, the plaintiff informed the employer that she was an approved user of medical marijuana under state law, and that she utilized medical marijuana to treat her post-traumatic stress disorder.  When plaintiff’s drug test came back positive for marijuana, the employer rescinded the job offer and refused to hire the plaintiff.  In doing so, the employer acted on the basis that it maintained a “zero tolerance” drug policy and that marijuana is illegal under federal law.  The plaintiff sued under the medical marijuana law’s non-discrimination provision.

The court granted summary judgment to the plaintiff, finding that the employer violated Connecticut’s medical marijuana law. The court paid little heed to defendant’s argument that it was required to reject plaintiff for employment because the federal Drug Free Workplace Act (DFWA) barred it from hiring plaintiff.  In coming to this conclusion, the court wrote that the DFWA neither required drug testing nor prohibited employers from employing someone who uses medical marijuana outside the workplace.  The court also stated that the DFWA did not require a “zero tolerance” drug policy.  The court then concluded that the Connecticut statute protects a qualified user’s use of medical marijuana outside work hours.

We will surely see an uptick in medical marijuana related litigation as more jurisdictions adopt medical marijuana laws, and as more employers make decisions regarding the employment of medical marijuana users. If one of your employees 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.

– Lee E. Tankle

Zero Tolerance Drug Testing Policies in the Age of Medical Marijuana

Q:  My Company wants to institute a drug testing policy that would automatically disqualify an applicant for employment if they test positive for illegal drugs, including medically-prescribed marijuana. Is this legal?

A.  The law regarding the responsibility of employers to accommodate medical marijuana use continues to evolve as more states pass laws allowing for marijuana use for medical and recreational reasons. In Pennsylvania, for example, the law is silent as to whether an employer can rely upon a positive drug test as a reason to reject the applicant for employment. However, the statute lists specific areas in which employers may prohibit employees from working while under the influence of marijuana – operating or controlling government-controlled chemicals or high-voltage electricity, performing duties at heights or in confined spaces; and performing tasks that threaten the life of the employee or his/her coworkers.  By implication, outside these specified areas, employers may be required to accommodate marijuana use, so long as it does not occur at work.

In New York, the law goes even further, providing that certified patients shall not be subjected to “disciplinary action by a business” for exercising their rights to use medical marijuana. A patient with a prescription for medical marijuana in New York State is considered to have a “disability” under the New York State Human Rights Law.  This means that New York employers must provide reasonable accommodations to employees or prospective employees who are certified to use marijuana for medical reasons.

The Massachusetts Supreme Judicial Court recently ruled that employers may be held liable for disability discrimination under Massachusetts state law if they fire an individual for using medical marijuana. In that case, the employee was fired after her first day of work for failing a drug test, despite the fact that the employee had informed the company that her doctor has prescribed marijuana as a way to manage her Crohn’s disease.  The court held that using medical marijuana is as lawful as using any other prescription medicine, despite the fact that it is illegal under federal law.  Further, the court stated that it would be a reasonable accommodation for an employer to allow its employees to use medically-prescribed marijuana away from the employer’s place of business unless the employer can show undue hardship.

It is quite possible that the growing number of states that have enacted medical marijuana legislation will follow the lead of the New York legislature and the Massachusetts court in adding medical marijuana use – at least outside of the workplace – to the list of accommodations that are considered to be reasonable. That means that employers will not be able to rely on positive drug test results for marijuana for employees working in non-safety-related positions without engaging in the interactive process with the employee or applicant.  The employer will have to analyze whether the employee’s use of marijuana outside of working hours will prevent the employee from performing the essential functions of his or her job.  Moreover, the employer will want to monitor the employee to ensure that the accommodation does not impact the employee’s job performance.

– Tracey E. Diamond