In a recent decision, Palmiter v. Commonwealth Health Systems, the Pennsylvania Court of Common Pleas held that: (a) the Pennsylvania Medical Marijuana Act (“MMA”) creates a private right of action for wrongful termination; and, alternatively, (b) an employee who claims to have been terminated for medical marijuana use authorized under the MMA can bring a claim of wrongful termination in violation of public policy. This Pennsylvania court now joins courts in several other states, including Arizona, Connecticut, Delaware, Massachusetts, New Jersey, and Rhode Island, which have allowed adverse action claims against employers by employees or applicants who used medical marijuana under state law.
Allegations and Defenses
The factual background is straightforward. Because of chronic pain, chronic migraines, and persistent fatigue, the plaintiff claims to have become authorized to use medical marijuana in December of 2018. In January of 2019, the plaintiff allegedly applied for a certified medical assistant position. She then underwent a drug test, reported to the testing lab that she was on prescribed medical marijuana, and provided a copy of the medical certification from her doctor that authorized her medical marijuana use. According to the plaintiff, a representative of Defendants called her later in January of 2019, stating that Defendants would not employ her based upon her drug test.
The plaintiff then filed suit, asserting multiple claims. Among them were claims of wrongful termination in violation of the MMA and public policy. Quoting the MMA, the plaintiff argued that no employer may discharge or otherwise discriminate against an employee “solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.” Also quoting the MMA, the plaintiff argued that it “is illegal to terminate an employee or refuse to hire an employee simply because she is prescribed medical marijuana.”
Defendants argued that the plaintiff’s wrongful termination claim under the MMA fails because there is no express or implied private right of action under the MMA. Likewise, Defendants argued that the plaintiff’s violation of public policy claim fails because a termination for failing a drug test does not implicate a clear mandate of public policy, so an exemption to the doctrine of employment at will is unwarranted.
The Court held that there is an implied right of action under the MMA. In so holding, the Court reasoned: (1) the plaintiff is a member of the class of people for whose special benefit the MMA was enacted; (2) there is an implicit indication of legislative intent to establish a private remedy; and (3) it is consistent with the underlying purpose of the MMA to imply a private cause of action. The Court observed that, in other states with medical marijuana statutes that contain anti-discrimination language but lack an express private right of action, courts that have considered the issue concluded uniformly that an implied private right of action exists. The Court cited decisions from courts in Arizona, Connecticut, Delaware, and Rhode Island. The Court also relied on the absence of any administrative enforcement mechanism in the MMA to hold employers accountable for violations. Absent such a mechanism or a private right of action, the Court observed, the MMA’s anti-discrimination mandate would “ring hollow” and “be rendered impotent” or “meaningless.”
As for the plaintiff’s public policy claim, the Court held that an at-will employee may assert such a wrongful termination claim, in the absence of a statutory remedy, where the termination threatens a clear mandate of public policy. In view of this principle, the Court held that an employer cannot terminate an at-will employee when doing so is specifically prohibited by statute. Here, the Court held, the MMA specifically prohibits the termination of an employee solely on the basis of the employee’s status as an individual certified to use medical marijuana. And, in her complaint, the plaintiff asserted that the employer terminated her employment for just that reason—her status as a certified medical marijuana user. Accordingly, the Court held that the plaintiff could assert a viable claim of wrongful termination under the public policy exception to the employment at-will doctrine. Because she had a viable statutory claim under the MMA, however, the Court held that the plaintiff could only plead her public policy claim in the alternative.
Takeaway for Employers
Employers should proceed with caution when it comes to restricting employee use of medical marijuana outside of work. More than half the states have comprehensive medical marijuana statutes, and some of those laws expressly prohibit discrimination in employment based solely on a person’s status as a qualified medical marijuana user. Courts in at least seven states have sustained lawsuits against employers for allegedly taking adverse action based on qualified medical marijuana use. Other courts may do the same. The highest court in Massachusetts—where the state medical marijuana statute does not expressly prohibit employment discrimination—has held that there is no private right of action under the Massachusetts medical marijuana law, but an aggrieved employee or applicant may nevertheless bring a claim under the state law prohibiting disability discrimination if an employer fails to reasonably accommodate medical marijuana use off-site and off-duty. How other courts might rule is unclear. Employers would be wise to proceed with caution, in view of the law in each jurisdiction and the unique realities of each workplace.