Navigating Pennsylvania’s Medical Marijuana Act Through the Lens of Employment Discrimination

Pennsylvania law permits the use of medical marijuana under the Medical Marijuana Act (MMA). However, it remains to be seen how the MMA will impact other areas of jurisprudence. The area of employment law is one example of how the courts are grappling with this novel statute and its specific application. Section 2103(b)(1) of the MMA provides that “[n]o 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 based on such employee’s status as an individual who is certified to use medical marijuana.” In Hudnell v. Thomas Jefferson University Hospitals, Inc., 2021 WL 63252 (E.D. Pa. Jan. 7, 2021), the court was presented with issues of claims for failure to accommodate and retaliation under the Pennsylvania Human Relations Act (PHRA) as they related to the MMA.

The first issue before the court was whether the employer failed to accommodate Donna Hudnell, the employee, under the PHRA. The employer argued that Hudnell failed to allege a qualified disability under the PHRA. However, the court disagreed and concluded that Hudnell alleged a disability apart from her medical marijuana use. In coming to this conclusion, the court explained that the employer misconstrued case law on the issue. Hudnell did not allege that her prescribed use of medical marijuana, in and of itself, was a disability under the PHRA. Instead, the use of medical marijuana was a reasonable accommodation for her alleged disability relating to her back pain. This issue was precisely decided in a previous case, Harrisburg Area Community College v. Pennsylvania Human Relations Commission, 2020 WL 6325862 (Pa. Cmwlth. Oct. 29, 2020), where the Commonwealth Court explicitly acknowledged that the plaintiff alleged disabilities and explained that the issue was whether the defendant was required to accommodate those disabilities by allowing the use of medical marijuana.

The court next examined the issue of retaliation under the PHRA. The court again found the employer’s argument flawed; specifically, that Hudnell’s reporting of her medical marijuana use is a protected activity under the PHRA. The court reasoned that Hudnell did not claim her report of medical marijuana use was a protected activity but, rather, that her request for a modified schedule satisfied a protected activity. The court further reasoned that retaliation claims differ from discrimination claims under the PHRA, in that they require a plaintiff only to show that they requested an accommodation in good faith and do not require a plaintiff to prove they have an actual disability. The court explained that whether or not the employee’s medical marijuana usage falls outside the PHRA’s definition of disability has no bearing on alleging a successful retaliation claim.

The court’s decision in Hudnell v. Thomas Jefferson University Hospitals, Inc., provides examples of important considerations for employers when analyzing the employee-employer relationship as it relates to medical marijuana use under the MMA. It also offers a roadmap employers can use during the initial analysis of a PHRC charge of discrimination relating to medical marijuana use under the MMA. Ultimately, the essential takeaway from the Hundell decision is that medical marijuana use alone appears to be insufficient to support a reasonable accommodation claim or a retaliation claim. What this means for employers is that the details and specific factual circumstances matter greatly. Whether medical marijuana use is coupled with a qualified disability, as defined by the PHRA, or with a valid protected activity will determine whether an employee’s claim succeeds or fails.

It is also important to be mindful that, although the case law on the issue of medical marijuana use within the employment context remains to be developed, the MMA does provide clear guidance for employers in a few critical areas. First, an employer is not required to accommodate an employee to allow the use of medical marijuana while at or on the premises of the place of business. Second, the MMA does not limit an employer’s ability to discipline an employee if they are under the influence of medical marijuana while at work. Similarly, the MMA does not limit an employer from disciplining an employee for being under the influence of medical marijuana while working when the employee’s conduct falls below the standard of care generally accepted for the particular position.

*Julian is an associate in our Scranton, Pennsylvania, office. He can be reached at 570.496.4623 or |jftruskowski@mdwcg.com.

_{Defense Digest, Vol. 27, No. 4, September 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}