Federal Court Finds Pennsylvania’s Medical Marijuana Act Contains Implied Private Right of Action
On September 25, 2020, the U.S. District Court for the Eastern District of Pennsylvania became the first federal court in the Third Circuit to rule that Pennsylvania’s Medical Marijuana Act (MMA) allows an employee to bring a private lawsuit against his or her employer for taking an adverse employment action “solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.” In Hudnell v. Thomas Jefferson University Hospitals, Inc. No. 20-01621, the court found in favor of the employee who argued that there is an implied private right of action under the MMA’s employment discrimination provision.
Donna Hudnell began working for Thomas Jefferson University Hospital (TJUH) as a security analyst in 2016. By 2018, Hudnell began experiencing chronic back pain, for which her physician prescribed medical marijuana. The following year, Hudnell requested, and was granted, a leave of absence to undergo back surgery. In October 2019, Hudnell asked to return to work. Due to the length of her leave, TJUH required Hudnell to undergo a drug test prior to returning to the workplace. Hudnell appeared for the drug test and provided her prescription medications, including her medical marijuana card, to the nurse collecting her sample. The nurse determined that the medical marijuana card had expired two months prior, in August 2019. Hudnell informed the nurse that she had an appointment scheduled with her doctor later that month for the purpose of recertifying her need for medical marijuana.
After the drug test reflected the presence of marijuana metabolites, TJUH terminated Hudnell’s employment. By the time TJUH communicated the termination decision, Hudnell had been recertified for the use of medical marijuana, and she offered to provide her renewed card to the company. TJUH declined, taking the position that the recertification was irrelevant because Hudnell did not have a valid medical marijuana card at the time she tested positive for marijuana. Hudnell’s doctor also submitted a note to TJUH stating that (1) he had certified Hudnell for medical marijuana use, (2) that she was able to purchase up to a one-month supply of marijuana until her card expired in late August 2019, and (3) that medical marijuana would remain in Hudnell’s system for up to two months after her last use. TJUH remained firm in its position and notified Hudnell that there was insufficient evidence to overturn the termination decision. Hudnell sued TJUH, alleging discrimination under Section 2103(b)(1) of the MMA (among other claims).
TJUH moved to dismiss Hudnell’s MMA claim, arguing that the MMA does not contain a private right of action that allows employees to file suit in court. Instead, TJUH argued, the MMA requires aggrieved employees to seek relief from the Pennsylvania Department of Health. The court disagreed with TJUH’s argument and predicted that the Supreme Court of Pennsylvania would recognize an implied private right of action under the MMA’s employment discrimination provision. In reaching this conclusion, the court relied upon a recent Pennsylvania state court case, Palmiter v. Commonwealth Health Sys., Inc. (Pa. Com. Pl. Lackawanna Cnty. Nov. 22, 2019), as well as several decisions interpreting other states’ medical marijuana statutes. Without an implied private right of action, the court held, the MMA’s antidiscrimination provision would be meaningless, and there was “no mistaking the General Assembly’s intent to protect employees from discrimination” under the MMA. Therefore, the court allowed Hudnell’s MMA claim to proceed.
This opinion has important implications for Pennsylvania employers. There have now been decisions at both the state and federal levels that the MMA contains a private right of action that will allow aggrieved employees to sue in court, and as of yet, no court has held to the contrary. Additionally, it is worth noting the court’s determination that an expired medical marijuana card does not necessarily prevent an employee from stating a claim under the MMA. Employers facing a situation like the one in Hudnell may want to consider investigating whether the positive drug test result could have stemmed from lawful usage, prior to the card’s expiration. Finally, employers may want to keep in mind that other federal, state, and local employment discrimination statutes, such as the Americans with Disabilities Act, the Pennsylvania Human Relations Act, and the Philadelphia Fair Practices Ordinance, may be implicated when an employee seeks an accommodation for the use of medical marijuana.