Pennsylvania Court Holds Employees May Sue Under Medical Marijuana Act
A Pennsylvania state court held that the state’s Medical Marijuana Act creates a private right of action for medical marijuana users to sue their employers. Pamela Palmiter v. Commonwealth Health Systems, Inc., Civ. Action No. 19 CV 1315 (Pa. Ct. C.P. Lackawanna County, Nov. 22, 2019).
The employee, Pamela Palmiter, was employed as a medical assistant. To treat her chronic pain, migraines and persistent fatigue, she became a medical marijuana patient in accordance with Pennsylvania law in December 2018. She immediately informed her employer. The employer was being acquired by another entity, and Ms. Palmiter claims that she was told her use of medical marijuana would not affect her employment. In connection with the acquisition, Ms. Palmiter was required to undergo a drug test. Soon thereafter, she was advised that she was not permitted to work because of her drug test result.
Ms. Palmiter asserted claims for violation of the Pennsylvania Medical Marijuana Act (“MMA”), breach of contract, invasion of privacy, violation of public policy, and intrusion on seclusion. The employer argued that Ms. Palmiter could not pursue a private right of action under the MMA, that she had no employment contract, and that there was no public policy violation, among other things.
The MMA provides that “[n]o 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.” Because the law does not expressly grant or deny a private right of action to an aggrieved employee, the court undertook a 3-part analysis to determine whether the statute provides a private remedy. 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. Among other things, the court found persuasive cases in other states ruling that there was an implied cause of action under the state medical marijuana law. E.g., Noffsinger v. SSC Niantic Operating Co, LLC, (D. Conn. 2017); Callaghan v. Darlington Fabrics Corp., (R.I. Super. 2017); Chance v. Kraft Heinz Foods Co., (Del. Super. 2018); Whitmire v. Wal-Mart Stores, Inc., (D. Ariz. 2019). Like these other courts, the Pennsylvania court held that “[w]ithout the availability of an implied right of action for an employee who is fired solely for being certified as a medical marijuana user, the anti-discrimination directive in [the MMA] would be rendered impotent.”
The court also held that the termination “implicates a clear mandate of public policy” because the law prohibits employers from using an employee’s status as a medical marijuana user as a basis for termination.
While this case is not binding on all other courts in Pennsylvania, employers should consider carefully all adverse employment decisions involving medical marijuana users.