The February 2017, issue of Pennsylvania Law Weekly published this author's comments on the employment law issues created by the then-recently enacted Medical Marijuana Act (MMA). I identified some of the practical and legal problems presented by the continued illegality of marijuana under federal law, the conflict between statutory employment protections for medical marijuana patients and common employer policies prohibiting illegal drug use. I predicted that the “imprecision of the MMA's statutory language” would “inject needless uncertainty into the employer-employee relationship” that “likely would not be resolved absent litigation.” Although to date there have been no cases reported under Pennsylvania's MMA, several courts in other jurisdictions have considered employment issues arising under similar medical marijuana statutes. The uncertainty is lessening; the smoke is beginning to clear.

The 2017 article conjectured that the federal Drug Free Workplace Act (DFWA), which requires recipients of federal funds to maintain a drug-free workplace as described, see 41 U.S.C. Section 8102, might serve as a defense to a claim brought by a medical marijuana patient. Noffsinger v. SSC Niantic, 338 F.Supp.3d 78 (D.Ct. 2018), a case arising under Connecticut's Palliative Use of Marijuana Act (PUMA), Conn. Gen. Stat. Sec. 21a-408 et seq. says otherwise. There, medical marijuana patient Noffsinger accepted a position as activities manager at the defendant's health and rehabilitation facility. The plaintiff informed her prospective employer about her medical marijuana prescription. PUMA Section 21a-408p(b)(3) provides that “no employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person's or employee's status as a qualifying patient” under PUMA. When Noffsinger's pre-employment drug screen returned positive for marijuana the job offer was rescinded. A representative of the defendant articulated company policy: “medical marijuana is not an approved prescription, … we use federal law, which indicates that marijuana is still illegal.” The court rejected the defendant's reliance on the DFWA as a defense to Noffisinger's claim, stating that: “The DFWA does not require drug testing. Nor does the DFWA prohibit federal contractors from employing someone who uses illegal drugs outside the workplace, much less an employee who uses medical marijuana outside of the workplace in accordance with a program approved by state law. That defendant has chosen to utilize a zero tolerance drug testing policy in order to maintain a drug free work environment does not mean that the policy was actually 'required by federal law in order to obtain federal funding.'”

Thus, the judge revealed the DFWA to be merely aspirational and not a source of positive duty or affirmative defense.

Much like Connecticut's PUMA, Pennsylvania's MMA prohibits discrimination against employees and applicants “solely on the basis of such employee's status as an individual who is certified to use medical marijuana.” In the 2017 piece, I parsed this language and wrote:

“Although subparagraph (b)(1) protects employees from employment actions based “solely” on their “status as an individual who is certified to use medical marijuana,” it says nothing about employment actions based on actual use pursuant to such certification. It would have been a simple matter for the legislature to have protected use pursuant to certification—“No employer may discharge, etc., an employee solely on the basis of such employee's use of medical marijuana in accordance with a valid certification …,” but it did not do so. The failure to provide protection for actual use of prescribed marijuana suggests that no such protection was intended by the legislature, but that is not the only possible reading of the act.

My suggestion was, however, unfounded, at least in Connecticut under PUMA:

“The defendant next argues that PUMA prohibits discrimination only on the basis of one's status as an approved medical marijuana patient but not on account of one's use of medical marijuana in accordance with a PUMA program. For this argument, defendant relies on the language of the statute that forbids an employer from refusing to hire someone 'solely on the basis of such person's or employee's status as a qualifying patient.' But the language and purpose of the statute make clear that it protects employees from discrimination based on their use of medical marijuana pursuant to their qualifying status under PUMA. Under defendant's restrictive interpretation of the statute, employers would be free to fire status-qualifying patients based on their actual use of medical marijuana—the very purpose for which a patient has sought and obtained a qualifying status. That makes no sense and would render the statute's protection against PUMA-based discrimination a nullity, because there would be no reason for a patient to seek PUMA status if not to use medical marijuana as permitted under PUMA.”

Despite the learned judge's characterization of the argument as making “no sense,” this author maintains that it is not nonsensical. Both the Pennsylvania and Connecticut statutes are ambiguous about whether employment protections extend to actual use, or only to status as a patient. The ambiguity may be attributable to the recognition by these legislatures that they were regulating in an area arguably preempted by federal law.

The 2017 comment noted that the conditions for which medical marijuana may be prescribed are explicitly designated as “serious health conditions” that would constitute “disabilities” under the Pennsylvania Human Relations Act. The Massachusetts Supreme Judicial Court held recently that employers in Massachusetts have a duty to reasonably accommodate the use of medical marijuana by their employees, as in Barbuto v. Advantage Sales & Marketing, 477 Mass. 456, 78 N.E.3d 37 (2017). Massachusetts' medical marijuana law provides that “Any person meeting the requirements under this law shall not be penalized under Massachusetts law in any manner, or denied any right or privilege, for such actions.” Barbuto accepted an entry-level position with defendant Advantage Sales and Marketing (ASM), and informed ASM that she was certified to use medical marijuana for treatment of Crohn's disease. Her pre-employment drug screen confirmed the presence of marijuana metabolites. Barbuto began work before being told by an ASM human resources representative that she was being terminated as a result of the positive drug test. According to Barbuto, she was told “that ASM did not care if Barbuto used marijuana to treat her medical condition because 'we follow federal law, not state law.'”

Barbuto sued claiming, inter alia, disability discrimination under Massachusetts law. The trial court dismissed her claims, but the Supreme Judicial Court reversed. That court first noted that under Massachusetts law employers have a duty to accommodate the use of prescribed medication to treat and alleviate serious health conditions, and where the use of medication might interfere with job performance or violate policy, employers “would have a duty to engage in an interactive process with the employee to determine whether there were equally effective medical alternatives to the prescribed medication whose use would not be in violation of its policy.” The Massachusetts Court then held that:

“Where no equally effective alternative exists, the employer bears the burden of proving that the employee's use of the medication would cause an undue hardship to the employer's business in order to justify the employer's refusal to make an exception to the drug policy reasonably to accommodate the medical needs of the handicapped employee.”

Rejecting ASM's defense that it was per se unreasonable to accommodate the use of drug still illegal under federal law, the court ruled that under Massachusetts law, as a result of the act, the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication. Where, in the opinion of the employee's physician, medical marijuana is the most effective medication for the employee's debilitating medical condition, and where any alternative medication whose use would be permitted by the employer's drug policy would be less effective, an exception to an employer's drug policy to permit its use is a facially reasonable accommodation. A qualified handicapped employee has a right under [Massachusetts law] not to be fired because of her handicap, and that right includes the right to require an employer to make a reasonable accommodation for her handicap to enable her to perform the essential functions of her job.

The court remanded the case for trial to permit ASM to prove that accommodating the plaintiff's medical marijuana use would pose an undue hardship.

Pennsylvania antidiscrimination law requires a similar duty of reasonable accommodation for disabled employees, e.g., 16 Pa.Code Section 44.14(a) (“An employer shall make reasonable accommodations by modifying a job, including, but not limited to, modification of duties, scheduling, amount or nature of training, assistance provided, and the like, provided that the modification does not impose an undue hardship”). It is therefore quite likely, especially in light of the more robust employment protection provisions of the MMA, e.g., 35 Pa.C.S.A. Section 10231.2103(b), that the Pennsylvania Human Relations Commission and the courts will apply an analysis similar to that adopted in Massachusetts to claims challenging the refusal of employers to accommodate medical marijuana use by employees.

John A. McCreary Jr. is a shareholder in the employment and labor and public sector groups of the Pittsburgh law firm Babst Calland Clements & Zomnir. His practice spans the full range of issues encountered in the employment setting, including labor contract negotiation and administration, grievance arbitration, benefit plan issues, disputes over discriminatory hiring practices, wrongful termination claims, as well as litigation over pension and benefit entitlement. Contact him at [email protected].