Why This Case is Important
Palmiter v. Commonwealth Health Sys., Inc., No. 398 MDA 2020, 2021 Pa. Super. 155 (Pa. Super Ct. Aug.5, 2021), is a case of first impression and the Pennsylvania Superior Court’s decision now paves the way for employees in Pennsylvania to sue their employers for alleged violations of Pennsylvania’s Medical Marijuana Act (MMA). The decision also creates an avenue for employees to pursue a wrongful termination claim when employees are terminated for medical marijuana use outside the workplace. This ruling reflects a growing trend with states such as Arizona, Connecticut, Delaware and Rhode Island which also allow employees to bring actions against employers for discrimination for violations of medical marijuana laws.
Ms. Palmiter (“Plaintiff”), was employed as a medical assistant by Medical Associates of NEPA. Plaintiff utilized medical marijuana because she suffered from chronic pain and migraines as well as persistent fatigue. During the course of Palmiter's employment, her employer, Medical Associates of NEPA was acquired by Defendant Commonwealth Health Systems, Inc. Despite providing her employer with documentation of her lawful use of medical marijuana, Plaintiff was terminated after testing positive for marijuana in an employer mandated drug test. Palmiter brought suit for a violation of her rights under Pennsylvania's Medical Marijuana Act (MMA) and also asserted a wrongful termination claim. Defendant/Employer countered that the MMA did not afford employees a private right of action to bring suit against their employers. The trial court ruled in favor of Palmiter and the Superior Court of Pennsylvania affirmed.
Court Finds Private Right of Action Implied in the MMA and Supported by Public Policy
The MMA states that "no employer may 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 employer's status as an individual who is certified to use medical marijuana." §10231.2103(b)(1). The Superior Court of Pennsylvania found that such language implied a private right of action in the MMA, a right which prior to this decision was not statutorily created or created by common law.
The Superior Court was unconvinced by the Defendant’s argument that the Pennsylvania Legislature did not intend to create a private right of action for employees based on the fact that enforcement of the MMA is assigned to the Pennsylvania Department of Health. In rejecting that argument, the Superior Court noted the lack of a formal complaint process under this provision for employees alleging injury. The Superior Court stated that the provision "would be rendered meaningless if an aggrieved employee cold not pursue a private cause of action and seek to recover compensatory damages from an employer that violates section 2103(b)(1)." In examining the legislative intent the Superior Court found that public policy underpinnings of the law clearly intended to provide safe and effective access to medical marijuana for eligible patients and to penalize any employer who discriminates against employees using marijuana for approved medicinal purposes. Therefore, despite the fact that the legislature failed to expressly create a statutory private right of action for aggrieved employees, it follows that such a right would exist in order for employees to exercise their rights under the MMA.
It was by way of this same logic that the Superior Court concluded that Plaintiff could also sustain her cause of action of wrongful termination under the statute. Although generally under Pennsylvania law an employee would not be able to maintain a cause of action against an employer for wrongful termination, the "at will" employment standard may be overcome by the employee if it can be shown that the termination was in violation of a clear public policy. Gross v. Nova Chems. Servs., 161 A.3d257, 262 (Pa. Super. 2017). In the case of hand, the Superior Court found that the MMA did not directly provide for administrative enforcement provisions. It has also found that the protection of medical marijuana users in the workplace was in consonance with the public policy intended by the legislation. Therefore, the Superior Court extended its prior reasoning for finding a private cause of action under the MMA and allowed for a common law claim of wrongful termination.
Important Notes for Employers
The amount of damages available under the MMA remains undefined, but the trial court did discuss the possibility of an award of front and back pay as being appropriate remedies for injured employees. In addition, because the Superior Court allowed the wrongful termination claim to stand under the MMA, employers may also be held responsible for punitive damages under Pennsylvania law. Despite the increased liability that employers may now face after Palmiter, the statute nevertheless still offers explicit protections for businesses including:
- Employers do not have to allow the use of medical marijuana on workplace premises.
- Employers may prohibit and discipline employees who are under the influence of medical marijuana in the workplace if "the employee's conduct falls below the standard of care normally accepted for that position."
- Employers may prohibit or restrict employees under the use of medical marijuana from completing any work tasks that may be life-threatening to the employee or others.
- An employer is not required to violate federal law to accommodate a person using medical marijuana. For example, certain industries are subject to enhanced federal requirements that prohibit marijuana use such as jobs that require driving a motor vehicle, etc.
Pennsylvania employers should take this opportunity to revisit their drug-test policies and current accommodations for employees who use medical marijuana outside the workplace. WSHB attorneys are knowledgeable and skilled at assisting clients with issues unique to cannabis. Please do not hesitate to reach out to a member of our cannabis law practice team or the author of this article should you have any questions or concerns on the implications of the Palmiter decision.