A Pennsylvania federal court refused to dismiss an employee’s claim for violation of the Pennsylvania Medical Marijuana Act (MMA), reasoning that the Pennsylvania Supreme Court is likely to recognize a private cause of action under the MMA. Hudnell v. Jefferson University Hospitals, Inc., Civil Action No. 20-01621 (E.D. Pa. Sept. 25, 2020). The court’s analysis of the MMA claim tracked a Pennsylvania state court decision, Palmiter v. Commonwealth Health Sys., Inc., which we blogged about here.
The employee, a Security Analyst, was required to submit to a return-to-duty drug test after being on leave for more than 90 days due to a surgery. The employee’s medical marijuana card expired during her leave, and she informed the testing personnel that she was awaiting recertification. Unsurprisingly, the employee tested positive for marijuana. Although the employee’s medical marijuana card was renewed shortly after her drug test, the employer terminated her employment, reasoning that the employee’s medical marijuana card was expired at the time of her failed drug test.
The employee continued to challenge the employer’s decision. She argued the testing personnel should have accommodated her to ensure that her positive drug test would not impact her employment due to the “imminent recertification.” The employee’s doctor also submitted a letter to the employer stating his belief that the positive test was based on lawful use of medical marijuana. The employer declined to overturn the termination decision.
The employee then filed administrative charges alleging failure to accommodate a disability and race discrimination related to the termination decision. After the U.S. Equal Employment Opportunity Commission dismissed the charges, but before the Pennsylvania Human Rights Commission or Philadelphia Commission on Human Relations took any action, the employee filed a lawsuit alleging claims under Title VII of the Civil Rights Act of 1964, the Pennsylvania Human Relations Act, the Philadelphia Fair Practices Ordinance, the MMA (35 P.S. § 10231.2103(b)(1)), 42 U.S.C. § 1981, and Pennsylvania public policy. The employer responded with a motion to dismiss the state law claims.
The court first dismissed the state and municipal discrimination claims without prejudice for failure to exhaust administrative remedies. The court then moved to the MMA claim. The MMA provides:
No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.
The employer urged the court to dismiss the MMA claim arguing the MMA does not provide a private cause of action. The employer alternatively argued the MMA did not apply to the employee because she did not hold a valid medical marijuana card at the time of her termination.
The court’s analysis tracked the Palmiter decision, applying the Pennsylvania Supreme Court’s three-part test for determining whether a statute implies a private cause of action. Specifically: (1) whether the plaintiff is one of the class for whose “especial” benefit the statute was enacted; (2) whether there is any indication of legislative intent, explicit or implicit, to create or deny such a remedy; and (3) whether it is consistent with the underlying purposes of the legislative scheme to imply such a cause of action.
Focusing first on the “central inquiry” of whether the text and context of the statute suggest legislative intent to provide a private cause of action, the court concluded that the employment discrimination provision of the MMA would cause the mandate to “ring hollow” without a private right of action, because the statute lacks an enforcement mechanism. The court concluded the first factor was satisfied, noting the statute was created “for the special benefit of employees with medical marijuana cards” and conveyed clear intent to “protect employees” from discrimination. Finally, the court found that a private remedy is consistent with the purpose and spirit of the MMA, which, among other things, seeks to provide medical marijuana patients with access to the benefits of medical marijuana “without fear of adverse employment actions.”
Based on the employee’s allegations that she legally purchased and used marijuana, disclosed her status as a cardholder, failed a drug test, and was fired the same day she recertified her medical marijuana card, the court concluded the employee stated a viable claim under the MMA.
This decision further signals the risk of liability for employers under the MMA. It is also one to watch going forward given the employee’s arguments that the employer was required to accommodate her due to her imminent recertification and that she was entitled to protection under the law notwithstanding the lapse of her medical marijuana card at the time of the positive drug test.