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 Gsell alleges that the Company improperly rescinded a job offer because he tested positive for THC (the active ingredient in marijuana) in a pre-employment drug test.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 Gsell that the job offer was rescinded and the position was “no longer available due to your positive drug screen results.”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 Gsell alleges that his job offer was rescinded solely because he was certified to use medical marijuana, noting that he did not seek to use medical marijuana on the Company’s property or to be under the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

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