Do We Have a Duty to Accommodate Medical Marijuana Use at Work?

In the nearly five (5) years since its enactment, the Pennsylvania Medical Marijuana Act (“MMA”) has been a topic of significant interest for employers, especially as Pennsylvania’s state and federal courts have begun to grapple with various provisions of the MMA.  For example, although the MMA does not explicitly state whether an employee can sue his/her former employer for discriminating against him/her “solely on the basis of [his/her] status as an individual who is certified to use medical marijuana,” a federal and state trial-level court have ruled within the past twelve (12) months that a “private right of action” is implied in the MMA.  In Harrisburg Area Community College v. Pennsylvania Human Relations Commission, which was decided late last week, the Commonwealth Court of Pennsylvania addressed whether the anti-discrimination provisions of the Pennsylvania Human Relations Act (“PHRA”) and Pennsylvania Fair Educational Opportunities Act (“PFEOA”) require accommodation of an individual’s use of lawfully-prescribed medical marijuana under the MMA.

The case centered on a nursing student at a community college, who was prescribed medical marijuana to treat post-traumatic stress disorder and irritable bowel syndrome.  The college required all students in the nursing to submit to a drug test on an annual basis; students who failed the test would be removed from the program.  The student at issue notified the college of her condition and asked that she be permitted to use the medical marijuana as an accommodation for her disability.  The student was told that her request could not be accommodated and informed that she would be required to undergo a drug test within ninety (90) days.  The student filed a complaint with the Pennsylvania Human Relations Commission (“PHRC”), claiming that the college failed to accommodate her disability under the PHRA and PFEOA.

The college filed a motion to dismiss the complaint, claiming that, because the definitions of “disability” in the PHRA and PFEOA exclude current users of controlled substances – which, under the federal Controlled Substances Act (“CSA”), includes marijuana – neither law requires accommodation of marijuana use, even if such use is permitted under the MMA.  The PHRC denied the motion, reasoning that, although the definitions of “disability” in the PHRA and PFEOA exclude current, illegal users of controlled substances, medical marijuana is lawful in Pennsylvania so long as it is prescribed by a physician under the MMA.

The Commonwealth Court reversed the PHRC on appeal.  As an initial matter, the Court recognized that the MMA does not provide any protections for post-secondary students and only addresses pre-school, primary, and secondary school students insofar as it directs the state Department of Education to promulgate regulations on whether the use of medical marijuana is permitted by these students.  The Court agreed with the college that, although the PHRA and PFEOA prohibit disability-based discrimination, the statutes exclude “current, illegal use of or addiction to a controlled substance” (as defined under the CSA) from the definitions of “disability.”  The Court noted that the legislature could have amended the PHRA and PFEOA to require accommodation of medical marijuana use, but did not. 

The reach of the Court’s decision, however, is not limited to the education context.  The Court affirmed that the employment provisions of the MMA do not require employers to accommodate employee use of medical marijuana on their premises and do not prohibit employers from disciplining employees who are under the influence of medical marijuana on work premises.  Even more importantly, the Court’s ruling that there is no right to accommodation of medical marijuana use under the PHRA is just as applicable to the employment context as it is in the education context.

Although the Commonwealth Court’s decision is subject to appeal to the Supreme Court of Pennsylvania, Pennsylvania employers can, at least for the time being, feel confident in refusing to accommodate medical marijuana use in the workplace under both the PHRA and the MMA.  For questions about this or any other labor and employment law topic, please do not hesitate to contact the attorneys at Hoffman & Hlavac.  To stay updated on the key labor and employment law developments that affect your workplace, be sure to subscribe to our blog and follow us on social media.