The list of qualifying “serious medical conditions” that make a patient eligible to participate in the Pennsylvania Medical Marijuana program continues to grow. After a recommendation by the Medical Marijuana Advisory Board, the state health department recently added anxiety disorders to the list of qualifying medical conditions under the Pennsylvania Medical Marijuana Act (PMMA). The addition of this mental health disorder significantly broadens the spectrum of potential patients and, in many cases, employees who could be prescribed medical marijuana and certified to carry a medical marijuana registration card. This addition will also significantly increase the likelihood that an employee of many Pennsylvania employers may now qualify for medical marijuana use. According to the National Institute of Mental Health, close to 20% of American adults suffer from an anxiety disorder, consisting of symptoms of persistent worry, inability to relax and difficulty concentrating. With the prevalence of this disorder among Americans, employers can no longer proceed under the assumption that employees using medicinal marijuana will be the exception.
While an employee’s decision to self medicate with marijuana, without going through the necessities of the medical marijuana certification process in Pennsylvania, has been summarily rejected as a basis to support disability discrimination/retaliation claims by a federal judge in the Eastern District of Pennsylvania, see Parrotta v. PECO Energy, 363 F. Supp. 3d 577 (E.D. Pa. 2019), the same may not hold true if, in fact, an employee is certified to lawfully use medical marijuana in Pennsylvania because of a “serious medical condition.” Employment discrimination claims based on the provisions in the PMMA are still working their way through the Pennsylvania courts. It is notable to recognize, however, that employees certified to use medical marijuana in other jurisdictions have found judicial support for their employment discrimination claims. In fact, courts in states with similarly structured medical marijuana statutes to the PMMA have uniformly rejected an employer’s argument or reliance on federal law to provide a defense to an employer’s decision to reject a candidate or terminate an employee because of a failed drug test related to medical marijuana use.
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