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Pennsylvania Worker Can Sue Employer for Medical Marijuana Bias

Sept. 28, 2020, 3:47 PM

Pennsylvania’s Medical Marijuana Act provides a private cause of action to workers, allowing state-sanctioned, card-carrying medical pot patients to sue their employers for alleged discrimination based on their lawful use of the drug, a federal judge in Philadelphia ruled on an issue of first impression.

No federal court in the U.S. Court of Appeals for the Third Circuit had previously addressed the question, and only one Pennsylvania commonwealth court had reached the issue, the U.S. District Court for the Eastern District of Pennsylvania said.

But courts in Arizona, Connecticut, Delaware, and Rhode Island have read those states’ similar laws as permitting employees to sue for bias based on medical marijuana use, the court said.

It predicted the Pennsylvania Supreme Court would find the state legislature intended to give workers the right to privately enforce the MMA even though the 2016 law doesn’t expressly provide that right. The law doesn’t provide for enforcement by a governmental agency, and the MMA would be toothless if private enforcement were prohibited, the court said.

That the purpose of the law is to protect medical marijuana cardholders from job discrimination and that recognition of a private right to sue would be consistent with that purpose is another reason Pennsylvania’s top court would validate a claim by employees under the MMA, Judge Gerald J. Pappert said Sept. 25.

And former Thomas Jefferson University Hospitals Inc. security analyst Donna Hudnell adequately stated an MMA bias claim in her lawsuit against the health system, the judge said.

According to Hudnell, she lawfully purchased and used medical marijuana, disclosed her cardholder status to Thomas Jefferson when she was drug tested as part of her return to work from spinal surgery, failed the test, and was fired the same day her medical marijuana card was re-certified, Pappert said.

The health system says that Hudnell’s card had lapsed at the time of her test and there was no way of knowing that her positive test stemmed from her lawful use of the drug for medical reasons.

Hudnell, a Black woman, also alleges a white employee who tested positive for marijuana without a valid medical marijuana card was treated more favorably than her because he was allowed to seek treatment while she was fired.

But she must wait and refile her disability and race bias claims under the Pennsylvania Human Relations Act and the Philadelphia Fair Practices Ordinance, the court said. She needs to wait until the state human rights commission finishes investigating her bias charge or fails to do so within one year of when she filed it, the court said, applying the PHRA rule to PFPO claims on another open issue of law.

Greg Greubel of Philadelphia represents Hudnell. Post & Schell PC represents the hospital.

The case is Hudnell v. Thomas Jefferson Univ. Hosps., Inc., 2020 BL 367616, E.D. Pa., No. 2:20-cv-01621, 9/25/20.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com

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