By: Leah K. Sell, Esq.
In a case of first impression, Hudnell v. Thomas Jefferson University Hospital 2:20-cv-01621, the U.S. District Court for the Eastern District of Pennsylvania permitted a Plaintiff employee to move forward with a private action under Pennsylvania’s Act 16 “Medical Marijuana Act.”
The Court held that while Act 16 does not explicitly provide a right for an employee to bring legal action against an employer, without a specific agency enforcement provision, a private action should be permitted as a reasonable means to uphold the Act’s anti-discrimination employment provision.
Act 16 provides a number of regulations regarding medical cannabis use and employment. Here, particularly at issue is the prohibition on an employer discriminating against an employee “solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.”
The Act also specifies that an employer can, or in some situations must, prevent an employee from engaging in certain employment activities that pose a safety risk, if the employee is “under the influence” of cannabis.
To the frustration of both employers and employees, “under the influence” is largely undefined in the employment context of the Act. Further complicating matters is a lack of accurate testing. The components of cannabis that drug tests analyze are those that can often remain in an individual’s system for days, or even weeks, after use. The effects of cannabis however, rarely last longer than a few hours. Therefore, a positive test may not accurately reflect whether an employee is currently under the “influence” of cannabis.
Potential issues to be addressed, and precedent to be set, if the Hudnell case moves forward could include:
- the meaning of discrimination “solely” on the basis of cardholder status – does this mean that an employee only has the right to be a cardholder or are there protections for an employee exercising that right, such as using medical cannabis outside of the workplace; additionally, can an employer take an adverse employment action so long as they do not consider cardholder status, or does cardholder status provide protections for employees, requiring the employer to consider cardholder status when making adverse employment decisions related to cannabis;
- clarity on the meaning of “under the influence” – does this refer to a threshold of a specific nanograms per milliliter in a blood test or is there an observational or other objective test yet to be developed;
- the duty of employers, if any, to accommodate a medical cannabis cardholder – one baseline question will be if employers have a duty to provide accommodations to zero tolerance drug testing policies;
- elements for a Pennsylvania medical cannabis cardholder employment discrimination claim.
Given this decision, and its potential impact on multiple policies, duties and the right of employees to bring a private claim, as well as several pending Pennsylvania state cases concerning similar theories of discrimination or failures to accommodate based on cardholder status, Pennsylvania employers should be cautious in making adverse employment decisions related to an employee’s medical cannabis cardholder status.
If you have any questions regarding workplace policies related to medical marijuana, termination, or any other employment-related legal issue, please contact Leah K. Sell. Leah Sell is an Associate with Leech Tishman, and a member of the firm’s Employment & Labor, Corporate, Cannabis and LaunchPad Practice Groups. She is based in the firm’s Pittsburgh office and can be reached at 412.261.1600 or firstname.lastname@example.org.
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Leech Tishman Fuscaldo & Lampl is a full-service law firm dedicated to assisting individuals, businesses, and institutions. Leech Tishman offers legal services in alternative dispute resolution, aviation & aerospace, bankruptcy & creditors’ rights, cannabis, construction, corporate, employee benefits, employment, energy, environmental, estates & trusts, family law, government relations, immigration, insurance coverage, intellectual property, international legal matters, litigation, real estate, and taxation. Headquartered in Pittsburgh, PA, Leech Tishman also has offices in Chicago, Los Angeles, New York, Philadelphia, Sarasota and Wilmington, DE.
 While the Plaintiff employee’s medical card was expired at the time she tested positive for marijuana use, she had recertified the card at the time that she was terminated and alleges any purchase or use of the marijuana was as a valid cardholder.
 The Act does provide a safe harbor for employees regarding federal regulations by stating that no employer shall be required to commit any act that would be in “violation of Federal law”. The Americans with Disabilities Act does not require an employer to accommodate an employee by permitting medical marijuana use, as marijuana is still considered a federally illegal Schedule I substance. However, an employer may be required to otherwise accommodate the disability for which the employee is utilizing medical marijuana as a treatment.