A recently decided case in Pennsylvania has held that employees who have been terminated by their employers for using medical marijuana have a private right of action. That is, employees can sue their employers for discriminating against them based on their legal use of medical marijuana. A “private right of action” pertains to “[a]n individual's right to sue in a personal capacity to enforce a legal claim.” Under the Pennsylvania Medical Marijuana Act (“MMA”) an employer is prohibited from discharging, threatening, refusing to hire, or otherwise discriminating or retaliating against an employee on the basis of the employee's status as an individual who is certified to use medical marijuana. In the case of Palmiter v. Commonwealth Health Systems, Ms. Palmiter worked as a medical assistant at a hospital. She was certified to use medical marijuana, which was prescribed because she suffered from chronic pain and migraine headaches. As a condition of her employment, she took an employment-related drug test and the results were positive for the metabolite of marijuana.
The hospital terminated her employment based on the positive drug test. She was not impaired at work and did not use marijuana on her employer’s premises. Believing that she was wrongfully terminated for her use of medical marijuana, she filed a lawsuit. The hospital sought to dismiss the suit, contending that a private right of action did not exist under the MMA. The court disagreed with the hospital, holding that an employee could file a lawsuit against the employer under the MMA. Pennsylvania has a clear public policy against the termination of employment based on an employee’s certified medical marijuana use off the employment premises.
In Pennsylvania, claims of disability discrimination, must first be filed at the Equal Employment Opportunity Commission (“EEOC”) or the Pennsylvania Human Relations Commission (“PHRC”). Unlike disability discrimination claims, discrimination claims for medical marijuana use can be filed directly in court without having to first file in an administrative agency like the EEOC or PHRC. In summary, individuals employed in Pennsylvania can bring a wrongful termination action in court when an employer terminates his/her employment for using medical marijuana outside of the employer’s premises, even if the termination is based on a positive workplace marijuana drug test result.