Medical Marijuana Consumer Might Proceed With Incapacity Discrimination Claims

A federal court in Pennsylvania ruled that a medical marijuana user’s claims for disability discrimination and retaliation were sufficiently asserted to survive an employer’s petition for dismissal. Hudnell v Jefferson University Hospitals, Inc., Civil Law Claim No. 20-01621 (ED Pa. January 7, 2021).

The employer terminated the employee after she tested positive for marijuana on a drug test to return to work. The employee’s medical marijuana card had expired by the time she tested positive. However, she then renewed it and provided a medical certificate stating that her positive test matched her prescription (before it expired).

In September 2020, the employer dismissed the employee’s claims for violating the Pennsylvania Medical Marijuana Act (MMA), discrimination on grounds of disability, and retaliation. See Hudnell v Jefferson University Hospitals, Inc., Civil Claim No. 20-01621 (ED Pa. September 25, 2020). The court denied the motion related to the MMA lawsuit but dismissed it, without prejudice to disability discrimination and retaliation, for failing to exhaust her administrative remedial measures. We blogged about this decision here.

After her administrative remedial actions under the Pennsylvania Human Rights Act (PHRA) and the Philadelphia Fair Practice Ordinance (PFPO) were exhausted, the employee reaffirmed her disability discrimination and retaliation claims. The employee explicitly claimed that the employer did not take into account her disability and terminated her employment in retaliation for applying for accommodation.

Again, the employer applied for the claims to be rejected. First, the employer argued that the employee’s medical marijuana use could not constitute a disability for the purposes of the PHRA and that marijuana use was not a reasonable accommodation. The court rejected these arguments on the grounds that the employee alleged a certain medical condition (herniated disc and related spinal injuries) and that her disability was not based solely on the use of medical marijuana. The court also found that she had applied for several accommodations other than marijuana use – some of which had been granted by the employer in the past – and that the employer had not participated in the interactive process.

The employer also argued that the employee’s report on medical marijuana use could not constitute a protected activity for the purpose of the employee’s retaliation. However, the court found that the employee’s request to split her time between work and home was a reasonable accommodation request and was sufficient to satisfy her burden with a request for dismissal. The court also found that it did not matter whether the employee’s medical marijuana use was outside the PHRA’s definition of disability or disability, as the employee only had to demonstrate that she had applied for accommodation in good faith. Her right to retaliation did not depend on evidence of actual disability.

Although the decision is in the early stages of the case, it highlights the fact that medical marijuana use is often associated with decent housing requirements and employers may subject to disability discrimination and retaliation claims.

Jackson Lewis PC © 2020National Law Review, Volume XI, Number 18