Pennsylvania Appeals Court Determines State's Medical Marijuana Act Includes a Private Right of Action for Employees
Tags : Drug Testing
By Kayleen Egan and Barbara Rittinger Rigo on August 19, 2021
In a case of first impression, the Superior Court of Pennsylvania has determined that employees can sue their employers for claims under the Pennsylvania Medical Marijuana Act (MMA). Palmiter v. Commonwealth Health Sys., Inc., No. 398 MDA 2020, 2021 PA Super. 155 (Pa. Super. Ct. Aug. 5, 2021). This is the first binding opinion in Pennsylvania establishing an MMA private right of action. In doing so, the court followed the lead of numerous courts around the country, including those in Arizona, Connecticut, Delaware, and Rhode Island, which have recognized that their respective state medical marijuana laws allow employees to sue their employers.1
The Pennsylvania Medical Marijuana Act
In addition to allowing qualifying patients to obtain and use medical marijuana, the MMA includes certain protections for employees certified to use medical marijuana. Specifically, it prohibits employers from "discharg[ing], threaten[ing], refus[ing] to hire or otherwise discriminat[ing] against an employee . . . solely on the basis of such an employee's status as an individual who is certified to use medical marijuana." The MMA does not explicitly state, however, that employees may sue their employers for violations of the MMA.
Palmiter v. Commonwealth Health Systems
In the Palmiter case, an employee working as a medical assistant filed a lawsuit in the Court of Common Pleas of Lackawanna County (the trial court) against her employer after she was fired for testing positive for marijuana on an employer-directed drug test. Palmiter v. Commonwealth Health Sys., Inc., 19-CV-1315 (Lackawanna County Nov. 22, 2019). The employee asserted multiple claims, including a claim under the MMA and a claim for common law wrongful termination in violation of public policy. The employer filed preliminary objections, asserting there was no private right of action under the MMA and no clear public policy underlying the employee's claims. The trial court disagreed, and the employer appealed to the Superior Court of Pennsylvania.
Trial Court's Decision Upheld
The Superior Court of Pennsylvania affirmed the trial court's decision, holding there is an implied private right of action under the MMA. The court rejected the employer's argument that the Pennsylvania Legislature did not intend to create a private right of action for employees because it delegated enforcement to the Pennsylvania Department of Health. In reaching this decision, the court found that because the Department's enforcement authority was not exclusive and did not provide a complaint procedure for aggrieved employees, the delegation of some enforcement authority to the Department did not evidence legislative intent against a private right of action.
Instead, the court held that by enacting the MMA, the Pennsylvania Legislature proclaimed a public policy prohibiting discrimination based on medical marijuana use. Applying principles of statutory interpretation, the court determined that even though the legislature did not do so explicitly, it intended to create a private right of action for employees who are discriminated against by their employers based on their status as certified medical marijuana users.
Regarding the wrongful discharge claim, the court determined that the MMA "evidences a clear public policy against termination of employment and other types of discrimination based on certified marijuana use off the employment premises." Accordingly, the court determined that employees can also assert claims for wrongful termination in violation of public policy for termination for off-premises medical marijuana use.
Palmiter is a significant decision because it affirmatively states that there is a private right of action under the MMA. It also confirms that an employee can bring a wrongful termination claim when an employer terminates their employment - or possibly even when an employer fails to hire them - due to their off-premises use of medical marijuana, even when adverse action is based on a positive workplace marijuana test result.
It is still unclear what damages are available under the MMA, but the trial court in Palmiter implied that back pay and front pay would be available to successful litigants. Additionally, punitive damages are available for wrongful termination claims in Pennsylvania, increasing an employer's potential liability. Following Palmiter, Pennsylvania employers should carefully evaluate how they accommodate medical marijuana users in the workplace and their drug-testing policies.
Regarding the latter, as those evaluations proceed, it bears emphasis what Palmiter did not address, namely, the various safe harbors built into the MMA for employers including:
- employers need not accommodate medical marijuana use on the property or premises of employment;
- the MMA in no way limits 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;
- the MMA does not require an employer to commit any act that would put the employer or any person acting on its behalf in violation of federal law (e.g., mandatory U.S. Department of Transportation drug-testing regulations);
- an employer may prohibit a medical marijuana patient from performing any task the employer deems life-threatening to either the patient-employee or to any other of its employees, while the patient is under the influence of medical marijuana; and,
- an employer may prohibit a patient from performing any duty that could result in a public health or safety risk while under the influence of medical marijuana.
Other potential issues that employers must grapple with include whether the job involves regular driving (the DUI THC level in Pennsylvania involves any detectible level) or whether the worker would have access to controlled substances, in which case DEA regulations may apply.
The contours of a meritorious claim under Palmiter thus remain to be decided. However, the days when a simple federal illegality policy sufficed and no private cause of action was available to the plaintiff are presently foreclosed by the appellate court's decision. Further, while it can be difficult to obtain review by the Pennsylvania Supreme Court, it is likely that it will eventually weigh in on this important issue.
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Posted: August 23, 2021
1 See Dale L. Deitchler and Elizabeth R. McKenna, In the First Case of its Kind, Court Rules Federal Law Does Not Trump Employee Protections under State Medical Marijuana Law, Littler Insight (Aug. 16, 2017); Dale L. Deitchler and Elizabeth R. McKenna, Delaware Court Holds Federal Law Does Not Preempt Employee Protections under State Medical Marijuana Law, Littler Insight (January 11, 2019); Eric B. Mack and Mary Kate Sexton, Rhode Island Superior Court Rules on Job Applicant's Medical Marijuana Use, Littler Insight (June 15, 2017).
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