ISSUE OF THE CASE
When an employee of a health system is terminated after testing positive for marijuana use, can she maintain a claim for wrongful termination because she had legal authorization for the use under the state’s medicinal marijuana statute?

FACTS OF THE CASE
Pennsylvania enacted the Medical Marijuana Act in 2016. In 2018, a patient consulted her physician for treatment of chronic migraines, pain, and persistent fatigue. The physician gave her authorization to use marijuana for medicinal purposes.

When she started the treatment, she was employed as a medical assistant by a medical group practice. That group practice then was acquired by a large health system that operated 8 hospitals and a number of home health and hospice operations, as well as several medical practices. She applied for a position with the acquiring business entity and was scheduled for a routine drug test post offer. She told the drug testing lab personnel and the potential new employer that she used medicinal marijuana and presented certification from her physician. She was told that she could not work for the new firm because of the results of her drug test. It was never alleged that she used the product while on duty; the focus was solely on use while off duty.

She filed a lawsuit against the potential employer, arguing that a provision in the Medical Marijuana Act precluded the firm’s action. She also argued that her employer violated public policy by terminating or failing to hire her because she tested positive for marijuana that she was authorized to use under the act.

The Medical Marijuana Act contains a provision that includes protections for employees who are certified to use medicinal marijuana.

It prevents employers from “discharging, threatening, refusing to hire, or otherwise discriminating against an employee…solely on the basis of such an employee’s status as an individual who is certified to use medical marijuana.”

On the other hand, the statute does not explicitly allow employees who use medicinal marijuana and think that they have been discriminated against to file a lawsuit challenging the action of their employer or prospective employer. The potential employer took the position that the exclusive remedy of an aggrieved potential employee under the statute would have been for the state department of health to assess a civil monetary penalty. They saw no express or implied right of private action under the statute.

The potential employer made a motion that the case be dismissed. Thus, the issue presented for the court to decide was whether this potential employee could maintain a lawsuit for monetary damages attributable to her wrongful discharge based on the statute and her situation.

THE RULING
The state trial court ruled that the action could proceed.

THE COURT’S REASONING
The judge focused on the argument that the statute does not expressly address, either by authorizing or denying, a private right to sue for such action by an employer or potential employer.

However, he did conclude that “recognition of such a right is consistent with the act’s stated purpose of providing safe and effective access to medical marijuana for eligible patients, while simultaneously protecting them from adverse employment treatment….”

The court also noted that, contrary to the argument advanced by the employer, the statute does not grant any state agency or commission, including the department of health, authority to enforce or regulate the employment protections in the act. Further, nothing in the statute would authorize the employee to recover lost wages or reinstatement by the department of health’s civil penalty approach.

The court concluded that the potential employee is a member of a class of people for whose benefit the statute was enacted. Moreover, it was consistent with the undergirding purpose of the legislation to imply a private right to sue for wrongful treatment.

The judge looked for legal precedent to guide his decision-making but found no prior decisions in his state addressing the issue. That led him to do legal research to see how such issues had been treated by courts in other states that also had enacted medicinal marijuana access statutes.

The judge concluded the issue by stating that “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 antidiscrimination directive in the statute would be rendered impotent.”

Several limitations of this case ruling must be emphasized. First, it is a decision of a trial court, so it is not binding precedent throughout that state. At this point, the decision only applies to this specific case. Also, certain types of employment may have a legitimate basis for banning medicinal use of marijuana by employees. Some have suggested that holders of commercial driver’s licenses or law enforcement personnel may fall into those categories. For pharmacists, the issue is certainly important because of the continued classification of the substance as Schedule I under the federal Controlled Substances Act. 
 
JOSEPH L. FINK III, BSPHARM, JD, DSC (HON), FAPHA, is a professor of pharmacy law and policy and the Kentucky Pharmacists Association Professor of Leadership at the University of Kentucky College of Pharmacy in Lexington.