Medical pot law allows workers to sue employers says Penn. state court

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  • Medical marijuana users can sue for discrimination
  • Hospital assistant’s job offer pulled after she failed drug test
  • Agrees with rulings from Connecticut, Rhode Island, Delaware and Arizona

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(Reuters) – A Pennsylvania state appeals court in a case of first impression has ruled that the state’s law legalizing and regulating medical marijuana allows workers and job applicants to sue employers for discrimination, squaring with decisions from judges in several other states.

A three-judge panel of the Pennsylvania Superior Court on Thursday said that while the 2016 Medical Marijuana Act (MMA) does not expressly create a private right of action, one was implied because the law did not grant any state agency the power to enforce its anti-discrimination provisions.

The panel agreed with a state judge that Pamela Palmiter, a medical assistant who uses medical marijuana, could sue Moses Taylor Hospital in Scranton for refusing to hire her after the hospital acquired her former employer and she failed a drug test.

A Pennsylvania federal judge came to the same conclusion last September, and state and federal courts in Connecticut, Rhode Island, Delaware and Arizona have said those states’ medical marijuana laws also allow workers to sue for discrimination.

The hospital, which is operated by Scranton Quincy Clinic Company LLC, and its lawyers at Post & Schell and FisherBroyles did not immediately respond to requests for comment. Nor did Cynthia Pollick of The Employment Law Firm, who represents Palmiter.

In 2018 – the same year that Palmiter began using medical marijuana to treat chronic pain and migraines – Scranton Quincy acquired her employer, and early the following year she applied for a certified medical assistant position with the hospital.

Palmiter was initially told she would be hired, according to court filings, but the offer was pulled after she tested positive for marijuana. Palmiter had informed the testing laboratory that she was prescribed marijuana, and presented the lab with a copy of her medical marijuana certification.

She sued Scranton Quincy in 2019, accusing the company of discrimination in violation of Pennsylvania’s medical marijuana law, breach of contract, invasion of privacy and wrongful dischrage.

The MMA prohibits employers from discharging, threatening, refusing to hire or retaliating against a worker because of their use of medical marijuana.

The hospital moved to dismiss her case, claiming the MMA did not create a private right of action and that only the state Department of Health could enforce the law’s anti-discrimination provision, including by imposing penalties for violations. The law focuses explicitly on prohibiting certain actions by employers rather than creating rights for employees, Scranton Quincy argued.

A state judge last year disagreed, finding that while the MMA authorized the health department to regulate the medical marijuana business and the issuance of certificates to patients, the anti-discrimination provision did not contain any language about enforcement.

The judge also said the anti-bias protections would be rendered meaningless if workers could not pursue legal claims and seek damages from employers who violate the law.

The Superior Court on Thursday agreed. In passing the MMA, state lawmakers established a public policy prohibiting discrimination, and that workers needed a legal mechanism to vindicate their rights, Judge Mary Jane Bowes wrote.

The panel included Judges Alice Dubow and Correale Stevens.

The case is Scranton Quincy Clinic Company LLC v. Palmiter, Pennsylvania Superior Court, No. 498 MDA 2020.

For the hospital: Daniel Thornton of Post & Schell

For Palmiter: Cynthia Pollick of The Employment Law Firm

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