Employers Beware: Your Employee CAN Sue You for Firing Over Medical Marijuana Use

January 24, 2020

The Facts of the Case:

On January 29, 2019, a medical assistant was terminated by her employer when a routine drug test revealed that the employee had used marijuana. The employee told her employer that she was a medical marijuana patient and provided her employer with a certificate, signed by her physician, that she was approved to use medical marijuana. Nonetheless, her employer refused to reconsider her termination and the employee filed a lawsuit against her employer alleging a violation of the Medical Marijuana Act, and wrongful discharge. Answering a question of first impression in Pennsylvania, the Lackawanna County trial court ruled that Pennsylvania’s Medical Marijuana Act (“Act”) does provide for a private cause of action against an employer who terminates an employee despite the Act’s prohibitions. The Court also ruled that such a termination violates public policy and therefore provides an employee with a common law cause of action for wrongful discharge.

What does the Act say?

The Act dictates that “no employer may discharge…or otherwise discriminate or retaliate against an employee…solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.” However, while the Act provides that the Pennsylvania Department of Health may assess civil penalties for a violation of the Act, nothing in the Act vests the Department of Health with specific authority to enforce the provisions of the Act that preclude an employer from taking adverse actions against an employee solely on the basis of the employee’s use of medical marijuana. On the other hand, nothing in the language of the Act or its regulations specifically permits an aggrieved employee from filing a direct action against the employer.

What the Court decided:

The question in Palmiter v. Commonwealth Health Systems, et al. was whether an aggrieved employee can, in fact, file a lawsuit against the employer if he or she is discharged on the basis of his or her lawful use of medical marijuana. In answering this question in favor of the employee, the Court held that the anti-discrimination provisions of the Act would be rendered meaningless if an aggrieved employee could not pursue a private cause of action and recover compensatory damages from an employer that violates the Act. The Court reasoned that recognition of this implied right of action is consistent with the Act’s purpose of providing safe access to medical marijuana while simultaneously protecting those patients from adverse employment actions. Moreover, because the Act establishes a clear public policy protecting medical marijuana users from adverse employment actions based solely on their use of medical marijuana, the Court permitted the employee to bring a claim for wrongful discharge even though there is ordinarily no right to bring such a claim when the employee is at-will.

What Pa. Employers Should Do Now?

The Court’s decision in Palmiter gives teeth to the Medical Marijuana Act’s anti-discrimination provisions and provides aggrieved employees with recourse that is not specifically set forth in the Act. While employers may be sued in such instances, —it does not mean that employees will have a winning case. Best practices dictate that Pennsylvania employers should familiarize themselves with the Act’s requirements, and update their job descriptions accordingly.

Questions? Please contact Ethan O’Shea, head of our Employment Law Practice, at eoshea@hrmml.com.

Questions Every Business Must Ask

Q. Has your business recently reviewed its legal structure to determine whether it is set up in the most advantageous manner for legal and tax purposes, considering recent developments and changes in the law?

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