By Rogena Rezkalla

On January 29, 2019, Pamela Palmiter (Employee), a medical assistant, was terminated by Commonwealth Health Systems (Employer). By way of background, Pamela previously worked for Medical Associates of NEPA (Medical Associates). The Employee told Medical Associates that she was a certified medical marijuana patient and provided Medical Associates with a certificate, signed by her physician, that she was approved to use medical marijuana. Medical Associates accepted her off-duty use of medical marijuana. However, when the company was acquired by Commonwealth Health Systems, her approved use of medical marijuana was rescinded by Commonwealth Health Systems.

Subsequently thereafter, the Employee filed suit against the Employer alleging a violation on a number of grounds, including breach of contract, invasion of privacy, violation of public policy and violation of the Pennsylvania MMA. Palmiter v. Commonwealth Health Systems, et al., No. 19 CV 1315 (Pa. Com. Pl. Lackawana Cnty. Nov. 22, 2019). The Employer filed a motion to dismiss all counts. The court agreed to dismiss all claims except the violation of the Pennsylvania MMA and public policy claims.

The Pennsylvania Medical Marijuana Act (MMA) was signed into law on April 17, 2016, permitting the use of medical marijuana by patients certified by the Pennsylvania Department of Health. The MMA prohibits employers from discriminating against employees merely because they are certified users of medical marijuana. Section 10231.2103(b) of the Pennsylvania MMA strictly prohibits employers from discharging, threatening, refusing to hire, or otherwise discriminating or retaliating against an employee on the basis of the employee’s status as an individual who is certified to use medical marijuana. However, employers are not required to accommodate the use of medical marijuana on the premise or property of the employer. 

This means an employer can discharge any worker found in possession of, selling or smoking marijuana on company time or property.  Furthermore, the MMA does not limit an employer’s ability to discipline an employee for being “under the influence” of medical marijuana in the workplace or for working while “under the influence” of medical marijuana when the employee’s conduct falls below the standard of care normally accepted for that position. Section 510 of the MMA clarifies that “under the influence” means “with a blood content of more than 10 nanograms of active tetrahydrocannabis per milliliter of blood.”

The court in Palmiter considered the above provisions of the MMA, as well as the fact that the MMA does not expressly grant or deny a private right of action under Section 2103(b)(1). Furthermore, Section 2103 does not grant any state agency or commission including the Department of Health, the power to enforce or regulate the employment protections in the MMA. In making its decision on this issue, the court looked into any precedent expressly creating a private right of action for certified medical marijuana employees. It found other decisions from around the country, including Noffsinger v. SSC Niantic Operating Company, LLC, 273 F. Supp. 3d 326 (D. Conn. 2017), where courts have recognized private rights of action to enforce state medical marijuana laws’ anti-discrimination provisions. 

As to the second issue regarding public policy, the court noted that Pennsylvania is a well-settled at-will employment state. Greco v. Myers Coach Lines, Inc., 199 A.3d 426, 435 (Pa. Super. 2018), app. denied, 208 A.3d 462 (Pa. 2019). However, Pennsylvania law creates certain exceptions to the at-will employment rule, including prohibiting an employer from discharging an employee when doing so is specifically prohibited by statute. The court concluded that since Palmiter alleged she was terminated because she was a certified medical marijuana user, and given that the MMA expressly states that employers may not 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, Palmiter should be permitted to maintain a claim for discharge in violation of public policy because her termination “‘implicates a clear mandate of public policy’ as declared by the General Assembly in the unambiguous language of P.S. § 10231.2103(b)(1).” Palmiter v. Commonwealth Health Systems, et al at 49.

Given the  law as applied to the specific facts of the case, the court ordered the Employer to file a responsive pleading to the complaint in regards to the issues concerning the MMA and public policy. Although the ruling is not binding on other jurisdictions because it’s a county decision, it is a decision that will allow other employees to use it in support of their claims.

Employers should familiarize themselves with the Acts requirements and seek legal counsel when developing company policies or taking any potential adverse action against employees related to medical marijuana. To comply with the MMA, employers should also amend their drug testing policies to allow for marijuana testing only where there is probable cause or where the job is one with some risk of injury to the public.