In a matter of first impression, Pennsylvania's Appellate Court issued a decision affirming a private right of action under Pennsylvania's Medical Marijuana Act ("MMA") and permitting a claim to proceed for wrongful discharge in violation of Pennsylvania public policy. The Appellate Court's decision in Palmiter answered two questions creating binding precedent and opening the door to prospective plaintiffs asserting discrimination claims under the MMA. In rendering the decision, the Appellate Court made clear that the MMA, although not expressly, implicitly calls for a private right of action to effectuate its purpose. Further, it held that an employee can assert a wrongful discharge claim in violation of public policy based on the allegation that the employee was discriminated against due to their status as an individual who is certified to use medical cannabis.
The holding comes several months after our initial post detailing the Lackawanna County Court of Common Pleas' decision recognizing an employee's right to sue an employer under the MMA representing the first of its kind in Pennsylvania.
To recap, the plaintiff, a medical assistant, was terminated by her health care employers for authorized off-site use of medical cannabis. Prior to an acquisition, plaintiff had disclosed that she was a certified medical cannabis patient to her employer and that she was advised there would be no issues with her prospective employer regarding her statutorily authorized off-site use of medical cannabis. When she applied for employment with her new employer, she was scheduled for her employment-related drug test. Plaintiff informed the testing laboratory that she used medical cannabis and provided the laboratory a copy of the medical cannabis certification. A few days later, plaintiff was notified that she would not be able to continue working for them due to her drug test. This litigation followed.
On appeal, the Appellate Court considered two issues:
1. Whether plaintiff's claim under the MMA was legally insufficient because the act does not provide a private right of action.
2. Whether plaintiff's claim for wrongful discharge in violation of public policy is legally insufficient.
An Implied Private Right of Action Exists Under the MMA
After embarking on a thorough analysis of both the MMA and the legislative intent behind the statute, the Appellate Court largely adopted the analysis of lower court in determining that there was "no impediment" to plaintiff's private right of action. In its reasoning, the Appellate Court focused on the language of Section 2103(b)(1), the anti-discrimination and anti-harassment provision of the MMA, in conjunction with the Act's stated purpose of "providing safe and effective access to medical marijuana for eligible patients, while simultaneously protecting them from adverse employment treatment in furtherance." When read together, the Appellate Court concluded that the language is "the type of rights-creating language that focuses on the individuals protected" thereby implying a legislative intent for a private right of action. The Appellate Court also found support for a private right of action given that Section 2103(b)(1) not only delineates the rights afforded to employees, but also sets forth the rights of employers. While the MMA references the Department of Health as the entity responsible for enforcing some provisions of the Act, the Appellate Court reiterated the trial court's opinion that "Section 2103 of the MMA does not grant the Department [of Health] or any other agency the administrative authority to enforce the antidiscrimination mandate." Accordingly, and absent any means of enforcing section 2103(b)(1), the Appellate Court concluded that the legislature intended to create a private remedy for violations from employers "who would penalize them [certified users of medical cannabis] for availing themselves of the benefits conferred by the statute."
Discrimination Based on Certified Use Violates Public Policy
Similarly, the Appellate Court again largely adopted the analysis and reasoning provided by the lower court in holding that plaintiff's claim for wrongful discharge may proceed. The Appellate Court relied on Section 2103(b)(1) of the MMA in maintaining that the Act clearly demonstrates a public policy against termination of employment and other types of discrimination based on certified cannabis use off the employment premises. Further, the Appellate Court analogized that when a qualifying patient uses medical cannabis in accordance with the MMA, it is a lawful medical treatment and akin to a prescription drug.
While the Appellate Court has affirmed the existence of a private right of action and allowed the unlawful termination claim to proceed, much remains unclear. Neither court hinted at whether the conduct allegedly suffered by plaintiff amounts to discrimination and what remedy would be afforded if she is successful.
It should also be noted that while zero tolerance policies, aside from those made pursuant to federal regulations like the Department of Transportation, may have seen their last days, employers are still allotted certain rights with regard to preventing the use of cannabis in the workplace and preventing employees from creating an unsafe environment due to their cannabis use. Nonetheless, employers should review any polices regarding the treatment of employees and potential job applications who use and can properly demonstrate they are certified patients under the MMA for their use of medical cannabis outside of work.
For more information about this important development, please contact the author or the Saul Ewing attorney with whom you are regularly in contact.