Author: Chartwell Law

On October 29, 2020, the Commonwealth Court of Pennsylvania set a new precedent by holding that Pennsylvania’s Medical Marijuana Act (MMA) did not safeguard a medical student from her college’s zero-tolerance drug policy. The court ultimately determined that the MMA did not require a college to accommodate medical marijuana use prescribed pursuant to the MMA, the Pennsylvania Human Relations Act (PHRA), or the Pennsylvania Fair Educational Opportunities Act (PFEOA).

In Harrisburg Area Cmty. Coll. v. Pa. Human Rels. Comm’n, 2020 Pa. Commw. LEXIS 722 (Commw. C. October 29, 2020), a nursing student at Harrisburg Area Community College requested an accommodation to be exempt from drug testing, based on her medical marijuana use under the MMA to treat her irritable bowel syndrome and PTSD. The student filed a complaint with the Pennsylvania Human Relations Commission after the college refused her accommodation. The college filed a motion to dismiss the student’s complaint and the PHRC denied the motion. The college then filed an interlocutory appeal to the Commonwealth Court.

In reversing the PHRC’s determination that the college was required to accommodate the student’s use of medical marijuana, the court explained that although the PHRA and the PFEOA prohibit discrimination by educational institutions on the basis of disability, they exclude illegal use of controlled substances as defined by federal law. The court also explained that marijuana is a schedule I controlled substance under federal law. Based on this fact, the court held that the college was under no obligation to allow the use of medical marijuana, as a reasonable accommodation, under the PHRA or the PFEOA, despite the legal status under Pennsylvania law. The court further explained that even if the student was an employee, the school would not be required to provide an accommodation in this case, based on the fact that nursing implicates a potential public health or safety risk.

Although this case specifically dealt with a student and a higher education entity, it can be inferred from the court’s rationale under the PHRA that employers may not be required to accommodate an employee’s medical marijuana use. The section of the PHRA that the court based its decision on applies to employees and employers as well.

The Commonwealth Court also recently weighed in on an unemployment compensation issue involving medical marijuana use. In The Pittsburgh Water and Sewer Auth. v. Unemployment Comp. Bd. of Review, Case No. 228 C.D. 2020 (Commw. Ct. Pa. Nov. 18, 2020), the court affirmed the Unemployment Compensation Board of Review’s decision granting unemployment benefits to a medical marijuana user who was terminated based on a positive test.

The case involved a Pittsburgh Water and Sewer Authority employee that was subjected to a random drug screening and tested positive for marijuana. The employer’s drug policy prohibited the use of any illegal drugs, including marijuana, both on and off duty. Despite the above, the policy did permit the use of legal drugs that did not affect job performance or safety. The policy specifically described legal drugs as legally obtained prescription medications. Following the positive test, the employee presented his medical marijuana card to the medical review officer who forwarded the drug test to the employer, and the employee was terminated.

The Unemployment Compensation Board of Review referenced Section 402(e.1) of the Unemployment Compensation Law and held that the employee was still eligible for benefits. The board explained that if the employer intended to exclude medical marijuana from the policy, stating a positive drug test would be excused if the employee presented a prescription for legal medication, the policy should have explicitly included that language. The court affirmed the board’s decision and explained that UC laws only require that employees adhere to an employer’s drug policy. Since the employer’s policy regarding medical marijuana use was unclear, the court determined that the reporting of the positive drug test by the MRO was not in accordance with the employer’s policy. As such, the court concluded that the board did not err in granting the employee’s Unemployment Compensation benefits.

It is evident from the recent Commonwealth Court decisions that additional litigation can be expected in matters related to the MMA. Employers are encouraged to remain vigilant in policy review regarding medical marijuana use to ensure compliance with the applicable law.

Source:  https://www.jdsupra.com/legalnews/new-precedent-set-by-the-pennsylvania-6990377/