You followed Pennsylvania’s process to get your medical marijuana ID card. You registered, had your condition officially certified and paid for the card. You pick up your prescription at an authorized dispensary. You have followed the law every step of the way.
Somehow, though, you have found yourself dealing with discrimination at work because of your status as a medical marijuana patient. This bias may even have led to you losing your job.
Now you’re wondering: Is there anything I can do?
Medical Marijuana and Employment Law
Medical marijuana has been legal in Pennsylvania since April 2016, when the Medical Marijuana Act was signed into law. The Pennsylvania Department of Health reports that over 582,000 caregivers and patients are registered for the state’s Medical Marijuana Program, with nearly 345,000 active certifications.
Physicians must also be approved as practitioners within the program to prescribe marijuana. Currently, over 1,500 medical doctors have been approved. To receive a medical marijuana ID card, a patient must visit an authorized physician who will certify that the patient has one of the 23 program-approved serious medical conditions.
Once you have your ID card, you can visit one of the state-licensed dispensaries to fill your prescription. In addition to making this process legal, the Medical Marijuana Act also protects you against discrimination or retaliation based on your certification.
Under the Pennsylvania Human Relations Act (PHRA), an employer with 4 or more employees must provide reasonable accommodations to disabled employees. If your employer has issued a blanket policy against marijuana use, they could be found in violation of the PHRA.
While an employer is still legally allowed to discipline you for being under the influence of marijuana while on the job, that is only the case when your conduct or behavior falls below standard. Be sure to review your employee handbook and company policies to find if the company has clearly established the parameters for that standard.
With no state law regarding drug testing for private companies, your employer is free to require that you submit to a test at any point. However, if you know or suspect that your employer is aware of your participation in the Medical Marijuana program, a random drug test might be evidence of discrimination.
Legal Exceptions
While the Medical Marijuana Act provides protection against direct discrimination, there are still loopholes that employers might use to discriminate against legal medical marijuana use.
Federal Law
While the Americans with Disabilities Act (ADA) would normally require an employer to make reasonable accommodations for a disabled employee, there is a provision in the Medical Marijuana Act that could overrule that requirement. According to that provision, the Act does not require employers to take action that would violate federal law.
Despite marijuana’s widespread acceptance as a medical treatment — as of May 2021, 36 states and four U.S. territories had legalized medical marijuana — it is still federally illegal and classified as a Schedule 1 drug. This classification could allow employers to prohibit even state-legal medical marijuana use at work.
Health and Safety Risks
The Medical Marijuana Act prohibits engaging in certain high-risk tasks while you are under the influence of marijuana.
- Confined spaces and heights: Being under the influence of medical marijuana bars you from performing any job duties either in confined spaces or at heights.
- Life-threatening activities: If you are under the influence of medical marijuana, your employer can prohibit you from any activity that they consider life-threatening to you or others.
- Risks to public health and safety: Being under the influence of medical marijuana also means that your employer can keep you from performing any activity that could cause a risk to public health or safety.
- Chemicals and electricity: This is the only prohibition that comes with a specific limitation. Someone with over the stated minimum of active tetrahydrocannabinol (THC) in their blood may not be in control of or operate federally or state-permitted chemicals. The same restrictions apply to high-voltage electricity.
Of these, the prohibitions on life-threatening activity and on risks to public health and safety do not legally count as detrimental employment decisions. That remains the case even if you suffer financial harm as a result of the decision.
Do I Have a Medical Marijuana Discrimination Case?
You may have a medical marijuana discrimination case under state or city laws. The Pennsylvania Human Relations Act prohibits employers from discriminating based on disability status. Your city might also have local laws to protect against disability discrimination, such as the Philadelphia Fair Practices Ordinance.
Pursuing a claim under these laws or the ADA can be tricky. You have a higher chance of success if your employer knows what your disability is in addition to knowing that you participate in the Medical Marijuana Program.
Currently, legal precedent in Pennsylvania allows employees to sue for discrimination under the Medical Marijuana Act.
Pennsylvania courts have ruled that the Act provides an implied private right of action. Simply put, “private right of action” is the right of an individual to pursue legal action based on existing laws or statutes. The Act does not explicitly grant these rights. However, a Pennsylvania federal court ruled that the language in the Act indicates the intention to protect employees with a medical marijuana prescription. The Superior Court of Pennsylvania later upheld that decision.
Under this precedent, you may be able to seek damages for discrimination or wrongful termination.
As an “at-will” state, Pennsylvania allows most employers to terminate employees at any time. However, you may still have a case for wrongful termination if you believe that you were fired due to discrimination based on your disability or status as a medical marijuana patient. Ask yourself if:
- The timing was suspicious: How soon were you fired after your employer discovered that you were a medical marijuana patient?
- There were negative comments at work about marijuana use: Had your employer or coworkers been speaking negatively about the Medical Marijuana Program, or about marijuana use in general?
- There was no just cause: How was your job performance? Were there any other firings or layoffs around the same time?
In successful medical marijuana case settlements for wrongful termination, you may be able to recover wages and benefits. You may be able to win compensation for a difference in income if you have been working in a lower-paying job since your termination. Additionally, you may be able to sue for damages if your firing has caused you undue emotional distress.
A company must have at least 15 employees to be held liable under the ADA, and at least four under the Pennsylvania Human Rights Act. However, there is no employee threshold under the Medical Marijuana Act, and private companies of any size can face legal action if they violate the Act.
Get a Free Consultation
If you believe you may have been the victim of medical marijuana discrimination, reach out to us today. At Weisberg Cummings, we have over 40 years of combined experience to bring to every case. We will take the time to get to know you and your case and provide an honest assessment to help you decide what actions to take.
For a free consultation, call us at 855-716-2367 or fill out our easy online form.
