Almost one year after Pennsylvania first permitted the use of medical marijuana, a federal court in Pennsylvania issued its first decision addressing an employer’s ability to discipline an employee based on his use of marijuana. Although the plaintiff “self-prescribed” marijuana in this case, the court addressed many of the questions that have been on the minds of human resources professionals and employment lawyers since the Pennsylvania Medical Marijuana Act (“PMMA”) went into effect.
In Parrotta v. PECO Energy, No. 18-2842, 2019 U.S. Dist. LEXIS 15336 (E.D. Pa. Jan. 31, 2019), a PECO senior engineer was randomly drug tested in May 2017. When one test returned positive for marijuana, PECO removed the engineer from his duties, referred him to an Employee Assistance Program for substance abuse evaluation, and placed the employee on Family Medical Leave Act (“FMLA”) leave. When the employee was cleared to return to work, PECO held a fact-finding hearing, at which the employee testified that he had “self-prescribed” marijuana for on-going pain that he had been experiencing as a result of a foot surgery in October 2016. PECO pointed out to the employee that, in May 2017, when he failed the drug test, prescription marijuana was not yet legal in Pennsylvania.
Judge Kearney opened his opinion by observing the uncharted waters in which Pennsylvania employers are floating. He wrote: “Confusion over marijuana use now reaches into whether an employee failing a drug test after admittedly self-prescribing marijuana . . . may argue his employer . . . retaliated by firing him [based] on his failed drug test.”
Ultimately, the court applied the familiar standards in Americans with Disabilities Act (“ADA”) and FMLA cases, without having to address the PMMA’s applicability. The court entered summary judgment in favor of PECO on the ADA, FMLA, and retaliation claims because the plaintiff did not have a disability at the time he was fired, and because the failed drug test provided PECO with a legitimate, non-discriminatory reason for firing him.
The Parotta case did not require the court to address the ultimate question of whether the law protects an employee from discrimination based on his lawful use of prescribed marijuana. The PMMA provides protection for employees as follows:
“No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.”
35 P.S. § 10231.2103(b). Furthermore, although Parotta did not address the employee’s protection under the Pennsylvania Human Relations Act, employers should be aware that courts in other states – for example, courts in Arizona, Massachusetts and Delaware – have recently recognized that their state anti-discrimination statutes protect employees from discrimination based on their lawful use of prescribed marijuana.
The Parotta case, involving one of Pennsylvania’s largest employers, is likely just the most recent step on a long road, as companies navigate the rapidly-evolving law of medical marijuana. Companies proactively should review their drug policies, and employers that conduct drug tests should consider how they will handle positive tests for marijuana use by employees who have marijuana prescriptions.