Employer Handbook Posts for 12/04/2019
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The Employer Handbook by Eric B. Meyer

Yes, if you get fired (or not hired) for holding a PA medical marijuana card, you can sue.

Drug Testing, Hiring & Firing, Pennsylvania

Image by CMElixirs from Pixabay

With a big ‘ol tip of the cap to Phil Miles, Esq. over at Lawffice Space (here) and Daniel Cummins at Tort Talk (here), we’ve got some news that should interest Pennsylvania employers.

For the first time, a state or federal court in Pennsylvania has decided (here) whether an individual can sue an employer that denies her employment because she has a medical marijuana card.

Before I provide the answer — spoiler alert: yes — I have a little background.

Pennsylvania is one of the many states that has legalized medical marijuana. Within the dense statute is an employment provision. And that bit makes it unlawful for an employer to “discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.”

In plain English, employers should not mess with individuals because they have a medical marijuana card.

But, what the statute doesn’t say is that an aggrieved individual can sue an employer. However, the law is silent about whether an individual can sue.

So, that’s what this case was about. And as you may have guessed from the spoiler, or maybe the title of this blog, the Pennsylvania Court of Common Pleas said yes:

[Plaintiff] is a member of the class of people for whose special benefit the [Medical Marijuana Act] was enacted, there is implicit indication of legislative intent to establish a private cause of action for an employee who is terminated in violation of [the employment provision], and recognizing such a private right of action is consistent with the MMA’s stated purpose of providing safe and effective access to medical marijuana for certified patients while ensuring their equal opportunities for employment….Without the availability of an implied right of action for an employee who is fired solely for being certified as a medical marijuana user, the anti-discrimination directive in [the employment provision] would be rendered impotent. 

So, ok, if you deny employment to a medical marijuana cardholder because she is a medical marijuana cardholder, you can get sued.

But, do you have to accommodate an employee’s use of medical marijuana outside of the workplace?

That’s another question for another day.

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