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Court Rules That Off-Duty Use of Medical Marijuana Is Not A “Disability” Under the Pennsylvania Human Relations Act

December 2, 2020


On November 10, 2020, Judge Terrence Nealon of the Lackawanna County Court of Common Pleas ruled that an employee’s off-duty medical marijuana use does not qualify as a “disability” under the Pennsylvania Human Relations Act (“PHRA”). This decision follows a recent decision of the Pennsylvania Commonwealth Court in Harrisburg Area Community College v. Pennsylvania Human Relations Commission, wherein the appeals court ruled that the PHRA does not require accommodation of a nursing student’s lawful, off-duty use of medical marijuana. Importantly, these decisions do not address whether an employee may assert claims against an employer pursuant to the Pennsylvania Medical Marijuana Act (“MMA”).

Plaintiff Pamela Palmiter was employed as a certified medical assistant at Moses Taylor Hospital in Scranton, Pennsylvania. After a positive drug test for marijuana, her employer terminated her employment in January 2019. Plaintiff, a certified medical marijuana user, had been lawfully prescribed marijuana in accordance with the MMA. Passed by the Pennsylvania General Assembly in 2016, the MMA permits qualifying individuals with certain medical conditions to lawfully obtain and use medical marijuana within the Commonwealth.

Following her termination, Plaintiff filed two lawsuits against her former employer – one alleging that Commonwealth Health violated the MMA and this case, alleging that Commonwealth Health violated the PHRA. In the instant case, Plaintiff filed claims for disability discrimination, failure to provide a reasonable accommodation, and retaliation under the PHRA. Plaintiff argued that her prescribed use of medical marijuana constituted a “disability” under the PHRA, not that her medical conditions, that necessitated her use of medical marijuana, were disabilities. She further claimed that permitting use of medical marijuana off the worksite is a form of a reasonable accommodation. In response, her former employer argued that it did not discriminate against her or deny her employment based on a “handicap or disability” because the use of medical marijuana is not a disability. The employer also argued that it was not required to accommodate her use of medical marijuana.

Ruling on Preliminary Objections, Judge Nealon ruled that the PHRA’s definition of “handicap or disability” excludes current, legal use of a controlled substance as defined in the federal Controlled Substances Act, and that marijuana is a controlled substance under that federal law. Judge Nealon also recognized that the MMA did not amend the PHRA’s definition of “disability,” and noted that the MMA specifically references at least eight other Pennsylvania statutes. Thus, Judge Nealon concluded that the PHRA does not require employers to accommodate the use of medical marijuana, even where legally prescribed under the MMA. Plaintiff appealed Judge Nealon’s decision to the Pennsylvania Superior Court.

Judge Nealon’s decision does not eliminate all liability for employers taking adverse action against employees due to the use of medical marijuana. In a 2019 decision in a separate case involving the same parties and arising out of the same facts, Judge Nealon ruled that employees may assert claims under the MMA and wrongful discharge for adverse employment actions that are taken because of their use of medical marijuana. At least two other federal and state trial courts have similarly found an implied right of action under the MMA. Judge Nealon’s decision on whether employees have a private right of action under the MMA is currently on appeal to the Superior Court.

Thus, even if Judge Nealon’s PHRA decision is affirmed by higher courts, the decision does not impact an employee’s ability to bring claims under the MMA and recover damages (including, potentially, punitive damages). Therefore, prior to disciplining or terminating employees for medical marijuana use, employers should take caution and consult with legal counsel.

If you have any questions or concerns regarding the Pennsylvania Human Relations Act, the Labor and Employment attorneys at Montgomery McCracken are available to assist.