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By Aniya Jones
In 2016, Ms. Donna Hudnell (Hudnell) gained employment as a security analyst for Thomas Jefferson University Hospital (TJUH). Approximately two years later, Hudnell began to experience acute back pain that limited her ability to perform work related duties, walk, and sleep. Hudnell’s acute pain led her to visit Dr. Bracken Babula, an internal medicine specialist. Dr. Babula certified Hudnell for medical marijuana use to alleviate her back pain; however, Hudnell’s pain progressed. In 2019, she requested permission to work from home full-time, which TJUH granted. In July of the same year, Hudnell was involved in an accident which further exacerbated her injuries. Hudnell’s excruciating pain led her to request a leave of absence from TJUH to undergo spinal surgery. TJUH approved this request for leave from July 5, 2019, to September 24, 2019.
By October of 2019, Hudnell was prepared to return to work. TJUH’s policy requires individuals to take a drug test if their leave of absence has exceeded ninety days. Hudnell reported for her drug test on October 11, 2019, and provided the administering nurse copies of her prescriptions, including her medical marijuana card. After viewing Hudnell’s medical marijuana card, the nurse informed Hudnell that the card had expired in August. Hudnell responded that she had an appointment with her doctor on October 16 to get recertified. After the completion of the drug test, Hudnell asked the administering nurse if she could submit her card after getting it recertified. The nurse informed her that this was not possible, and she should speak to human resources for further instruction.
After completing the recertification process, a human resource agent of TJUH told Hudnell that she has been terminated from her employment. The human resource employee informed Hudnell that her recertification was irrelevant because she did not have a valid medical marijuana card at the time of the drug test.
Hudnell filed suit against TJUH and asserted, amongst other things, a discrimination claim under the Pennsylvania Medical Marijuana Act (MMA). Section 2103(b)(1) of the Act strictly prohibits employers from discharging, threatening, refusing to hire, or otherwise discriminating or retaliating against an employee based upon the employee’s status as one who is certified to use medical marijuana. See 35 P.S. § 10231.2103(b)(1). TJUH primarily argued that Hudnell cannot maintain a claim under the MMA because the statute does not provide a private right of action. TJUH also argued the MMA does not apply because Hudnell did not possess a valid medical marijuana card at the time of her drug test.
To rule on the matter, the Court applied a three-part, derived from Cort v. Ash, 422 U.S. 66, 78 (1975), to determine whether the MMA implies a private right of action. The Court must decide if the plaintiff is a part of the class for whose special benefit the MMA was enacted to protect, if there is legislative intent to either create or deny a private right of action, and lastly, if the MMA is consistent with the underlying purposes of the legislative scheme to imply a private right of action for the plaintiff.
The Court held that a proper application of the Cort factors will lead the court to finding an implied private right of action for the plaintiff. It was determined that the text of the statute implicitly suggests legislative intent to create a private right of action because the MMA authorizes the Department of Education to enforcement certain provision of the MMA. The MMA authorizes the Department to develop regulations governing possession and use of medical marijuana on school grounds; however, the act does not authorize agency enforcement of Section 2103(b)(1). The Court reasoned that an exclusion of a specific administrative enforcement mechanism suggests the legislature did not intend to bar a private right of action under Section 2103(b)(1). Given the absence of any other enforcement mechanism in this Section, the Court believes the Pennsylvania Supreme Court would agree that without a private right of action, the provisions in Section 2103(b)(1) will “ring hallow.” Palmiter, 2019 WL 6248350. To support this position, the Court analyzed the first and third Cort factors.
First, it was determined that the legislature crafted Section 2103(b)(1) to protect those with a medical marijuana card from discrimination. Hudnell is part of this class because she is an individual who is being discriminated against, by her employer, because she obtained a medical marijuana card. The third factor also supports finding an implied right of action because doing so is consistent with the underlying purposes of the legislative scheme. When the General Assembly enacted the MMA, it intended to provide a program of access to medical marijuana. The Assembly balanced the needs of MMJ patients to the need to promote patient safety, furnish a safe and effective method of delivery of medical marijuana, and to promote high quality research into the utility of the medicinal drug. Id. To ensure that patients can realize those benefits without fear of adverse employment actions, the legislature included Section 2103(b)(1). Therefore, a private remedy is consistent with the purpose of the MMA. Hudnell’s allegation that she legally purchased and used medical marijuana, disclosed her status as a cardholder, failed a drug test at work and then was fired the same day she recertified her medical marijuana card is just enough to provide her with an implied private right of action.
This opinion obtains vital implications for Pennsylvania employers. There are now decisions at the state and federal levels holding that the MMA contains a private right of action that will allow aggrieved employees to sue in court. This decision is also significant because the court determined that an expired medical marijuana card does not necessarily prevent an employee from stating a claim under the MMA. Employers facing a situation like TJUH may consider investigating whether the positive drug test result could have stemmed from lawful usage, prior to the card’s expiration. TJUH would have obtained a stronger defense if their reasoning for terminating Hudnell was based solely on the fact that she illegally used marijuana to treat her physical condition. Illegal use of medical marijuana would have barred Hudnell’s protection under the MMA.
