December 7, 2021

Volume XI, Number 341

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December 06, 2021

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Pennsylvania Medical Marijuana User May Proceed With Disability Discrimination And Retaliation Claims

A federal court in Pennsylvania held that a medical marijuana user’s claims for disability discrimination and retaliation were sufficiently alleged to survive the employer’s motion to dismiss.   Hudnell v. Jefferson University Hospitals, Inc., Civil Action No. 20-01621 (E.D. Pa. Jan. 7, 2021).

The employer terminated the employee’s employment after she tested positive for marijuana on a return-to-duty drug test. The employee’s medical marijuana card was expired at the time she tested positive. However, she subsequently renewed it and provided a doctor’s note stating her positive test was consistent with her prescription (pre-expiration).

In September 2020, the employer moved to dismiss the employee’s claims for violation of the Pennsylvania Medical Marijuana Act (MMA), disability discrimination and retaliation. See Hudnell v. Jefferson University Hospitals, Inc., Civil Action No. 20-01621 (E.D. Pa. Sept. 25, 2020). The court denied the motion with respect to the MMA claim, but dismissed without prejudice disability discrimination and retaliation claims due the employee’s failure to exhaust her administrative remedies. We blogged about that decision here.

After exhausting her administrative remedies under the Pennsylvania Human Rights Act (PHRA) and Philadelphia Fair Practice Ordinance (PFPO), the employee re-asserted her disability discrimination and retaliation claims. The employee specifically claimed the employer failed to accommodate her disability and terminated her employment in retaliation for requesting accommodations.

Again, the employer moved to dismiss the claims. First, the employer argued that the employee’s medical marijuana use could not constitute a disability under the PHRA and that using marijuana is not a reasonable accommodation. The court rejected these arguments, reasoning that the employee alleged a specific medical condition (herniated disc and related spinal injuries) and her disability was not solely based on using medical marijuana. The court also found that she had requested several accommodations other than marijuana use — some of which the employer had granted in the past — and that the employer failed to engage in the interactive process.

The employer also argued the employee’s report of medical marijuana usage could not constitute protected activity for purposes of the employee’s retaliation claim.  But the court found that the employee’s request to split her time between work and home constituted a request for a reasonable accommodation and was sufficient to satisfy her burden on a motion to dismiss. The court further reasoned that it did not matter whether the employee’s medical marijuana usage fell outside of the PHRA’s definition of disability or handicap, because the employee only needed to show that she requested an accommodation in good faith. Her retaliation claim was not contingent on showing an actual disability.

Although the decision is in the early stages of the case, it highlights the fact that medical marijuana use is often intertwined with reasonable accommodation requests and may subject employers to disability discrimination and retaliation claims.

Jackson Lewis P.C. © 2021National Law Review, Volume XI, Number 18
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About this Author

Catherine A. Cano, Jackson Lewis, Federal Disability Lawyer, Retaliation Matters Attorney
Associate

Catherine A. Cano is an Associate in the Omaha, Nebraska, office of Jackson Lewis P.C. She represents management in all areas of labor and employment law. 

Ms. Cano helps clients navigate state, federal, and local leave and disability laws. Ms. Cano has experience in litigation and arbitration in several areas, including employment discrimination, retaliation and whistleblower claims, and non-competes and unfair competition. Ms. Cano’s practice also includes assisting clients involved in union organization campaigns, collective bargaining,...

402-391-1991
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