Can an employee sue their employer for terminating or taking other adverse actions against them solely because the employee is a certified medical marijuana user? The answer is yes, according to a federal court in Pennsylvania.
On Sept. 25, the U.S. District Court for the Eastern District of Pennsylvania found in favor of a terminated employee who argued there is an implied right of action under the state’s Medical Marijuana Act (MMA) employment discrimination provision.
Card provided before test
Donna Hudnell worked as a security analyst for Thomas Jefferson University Hospital beginning in 2016, and by 2018 she began experiencing chronic back pain.
Her doctor prescribed medical marijuana to ease her pain, and in early 2019 she underwent back surgery, according to a blog post by law firm Ogletree Deakins.
The surgery required a leave of absence from her job, and when Hudnell returned to work in October 2019 she was required to take a drug test due to the length of her leave.
She provided the nurse collecting her sample with her prescription medications, including her medical marijuana card.
The nurse noted the medical marijuana card had expired in August 2019, but Hudnell said she had an appointment later in the month to recertify her need for the drug with her doctor.
Doctor’s note didn’t help
After Hudnell tested positive for marijuana, the hospital terminated her employment, but by that time she was recertified to use medical marijuana.
She offered to provide the new card to her employer, but the hospital declined, saying the new card was irrelevant since she had an invalid card at the time of the drug test.
Hudnell’s doctor sent a note to the hospital, stating that:
- he had certified Hudnell for medical marijuana use
- she was able to purchase up to a one-month supply of marijuana until her card expired in late August 2019, and
- medical marijuana would remain in Hudnell’s system for up to two months after her last use.
The hospital wouldn’t budge and told Hudnell there was insufficient evidence to overturn the termination, so Hudnell sued, alleging discrimination under the MMA.
Precedent already set in PA
Thomas Jefferson University Hospital argued the case should be dismissed because it said the MMA doesn’t contain a private right of action allowing employees to file a lawsuit.
But the court disagreed – and predicted the state Supreme Court would also disagree – because of precedent set by a similar case in Pennsylvania, Palmiter v. Commonwealth Health System, and decisions in other states.
Without an implied right of action the anti-discrimination provision was meaningless, according to the court, so Hudnell’s suit was allowed to proceed.
