Published in the December, 2019 issue of the PELRAS newsletter
Published on: Fri 13th Dec, 2019 By: Brad J. Betack
In a case of first impression, the Lackawanna County Court of Common Pleas has recently held that the Medical Marijuana Act includes a private cause of action for aggrieved employees to bring discrimination claims against employers. Specifically, in Palmiter v. Commonwealth Health Systems Inc., the Court held that although the Medical Marijuana Act does not explicitly permit a private right of action by an employee who is allegedly discriminated against because of medical marijuana use, it does so implicitly.
The Medical Marijuana Act was passed on May 17, 2016, authorizing individuals with a “serious medical condition” to utilize medical marijuana obtained from a licensed dispensary in the Commonwealth. The list of conditions that constitute a “serious medical condition” are included in the Act and range from cancer, PTSD, autism, to chronic pain and anxiety. In support of its authorization to use medical marijuana, the Act protects registered users by prohibiting employers from taking any adverse employment action against an employee “solely on the basis of the employee’s status as an individual that is certified to use medical marijuana.”
The Plaintiff, Pamela Palmiter, was hired as a medical assistant in January 2017. At the time of hire, she advised her employer that she was prescribed medical marijuana for treatment of various medical conditions including chronic pain, chronic migraines and fatigue. While her employer was in the process of being acquired by another company, Palmiter claims that she was told she would be “grandfathered in” related to her use of medical marijuana off the job site. After her original employer was taken over by Commonwealth Health, Palmiter applied for a promotion as a certified medical assistant and underwent a medical exam at the employer’s request. A short time later, Palmiter was told that she could not work for the employer because of the results of her drug test.
Palmiter filed the present lawsuit, alleging that the employer’s termination of her was discriminatory and a violation of Section 2103(b)(1) of the Act, which prohibits an adverse employment action being taken as a result of an employee’s certified status as a medical marijuana user.
The employer, Commonwealth Health, argued that the Medical Marijuana Act does not authorize a private right of action by individuals and that the PA Department of Health has the exclusive authority to enforce the Medical Marijuana Act’s provisions. Under Commonwealth Health’s argument, the sole remedy for an aggrieved employee under the Medical Marijuana Act would have been an assessment of a civil penalty by the Department of Health.
The Common Pleas Court examined the Medical Marijuana Act and noted that Section 2103, unlike the other provisions in the Act, does not grant any state agency, including the Department of Health, the power to enforce the employment protections provided in the Act. Because of the absence of any grant of enforcement power, the Court found that an implied right of action exists because there is no indication of any legislative intent in the Act to deny a wrongfully discharged employee a private cause of action under Section 2103(b)(1).
While many other questions still remain with regards to the scope of the protections provided by the Medical Marijuana Act, this recent Court of Common Pleas decision clarifies that employees can bring their own private cause of action against employers for alleged violations of the Act, thereby increasing potential liability concerns for Pennsylvania employers under the Act. It is noted that Palmiter is not an appellate decision and therefore is not yet binding throughout the Commonwealth. Palmiter also did not involve a government employer and does not address questions regarding application of the Federal Drug Free Work Place Act and local governments that receive federal funds. Lastly, it should also be noted that the Palmiter decision does not mean that CDL drivers or law enforcement officers in Pennsylvania are permitted to use off duty medical marijuana. Public employers should be proactively working with labor counsel to review and amend, if necessary, their employee handbooks and policies and procedures to ensure compliance with the restrictions and requirements of the Pennsylvania Medical Marijuana Act.
