Labor & Employment Law Daily Employee fired because she lacked valid medical marijuana card at time of positive test advances bias, retaliation claims
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Thursday, January 14, 2021

Employee fired because she lacked valid medical marijuana card at time of positive test advances bias, retaliation claims

By Kathleen Kapusta, J.D.

The hospital security analyst told the nurse administering the test that her card had recently expired, and she recertified her card after the drug test.

Denying a hospital employer’s motion to dismiss the state-law disability discrimination claim of an employee who alleged she legally purchased and used medical marijuana, disclosed her status as a cardholder, failed a drug test at work, and then was fired the same day she recertified her medical marijuana card, a federal district court in Pennsylvania found that she alleged a disability apart from her medical marijuana use. As to her Pennsylvania Human Relations Act retaliation claim, which also survived the employer’s motion, the court pointed out that rather than claim her report of medical marijuana usage was protected activity, she alleged her requests for reasonable accommodations for her disability qualified as protected activity (Hudnell v. Thomas Jefferson University Hospitals, Inc., January 7, 2021, Pappert, G.).

Certified. Two years after she was hired as a security analyst, the employee began experiencing significant back pain and in August 2018, she visited an internal medicine specialist who certified her for medical marijuana use. After spinal surgery in July 2019, the employee took a leave of absence.

In October, she asked to return to work but because she had been on leave for over 90 days, she was required to take a drug test. When she reported for her test on October 11, she provided her medical marijuana card, which had expired in August. She told the nurse administering the test that she had an appointment on October 16 to get recertified. Despite being recertified on October 16 and completing the card renewal process on October 20, she was fired because she did not have a valid medical marijuana card at the time of the drug test.

Prior proceedings. The employee sued the hospital, asserting various state-law claims and the court, in a prior opinion, held that the state’s high court would likely find that Pennsylvania’s Medical Marijuana Act (MMA) implies a private right of action for employees alleging discrimination under Section 2103(b)(1) and refused to dismiss that claim. It also found that she failed to exhaust her PHRA claims and thus dismissed them. She then subsequently exhausted those remedies and realleged them.

Failure to accommodate. Moving again to dismiss her PHRA failure-to-accommodate claim, the hospital argued that the employee failed to allege a PHRA-protected disability as it does not include current, illegal use of or addition to a controlled substance. The employee, however, did not allege that her prescribed use of medical marijuana qualified as a disability under the PHRA, the court observed. Rather, she alleged she suffered from a herniated disk and related spinal injuries that caused her pain and limited her ability to “perform manual tasks, walk, and sleep.” Further, she claimed that the hospital previously accommodated this disability by letting her work from home. Noting she alleged a disability apart from her medical marijuana use, the court denied the employer’s motion to dismiss this claim.

Retaliation. Likewise, her PHRA retaliation claim also advanced, said the court, noting the employer’s motion to dismiss, like its argument to dismiss the discrimination claim was narrow. It contended that the employee’s report of her medical marijuana usage was not PHRA-protected activity since her usage fell outside the PHRA’s definition of handicap or disability. But rather than claiming her report of medical marijuana usage was protected activity, she alleged her requests for reasonable accommodations for her disability, such as her request to split time between working in the office and at home, qualified as protected activity, which was enough to satisfy her burden at this stage of the litigation.

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