Marijuana: The Hits Keep Coming Part II

Last week, we touched on a few employee-friendly cases related to marijuana use in the workplace and employer drug testing policies. This is the second part of this series with additional cases, outcomes, and action items.

Private Right of Action Created

Palmiter v. Commonwealth Health Systems, Inc. 

Employers outside of New Jersey certainly aren’t off the hook. A recent case from a Pennsylvania state court raises concerns for employers as well. In Palmiter v. Commonwealth Health Systems, Inc., a medical assistant was terminated by her employer for a positive drug test due to medical marijuana use during off-duty hours. The former employee then filed suit against the employer alleging the state’s Medical Marijuana Act (MMA) prohibited employers from discharging, discriminating or retaliating against an employee based solely on the employee’s lawful use under the MMA.
 
The court reviewed the employer’s argument that the MMA does not create a private right of action (i.e., an individual cannot sue an employer for alleged violations). While the court acknowledged the language in the MMA “does not expressly grant or deny” a private right of action, the right is implied as to hold otherwise would essentially mean the “anti-discrimination directive in [the MMA] would be rendered impotent.” Based on this reasoning, the court found an individual can file a wrongful termination claim under the MMA.
 
While this county court opinion is not binding case law to other areas of the state, it certainly sets the stage for our Pennsylvania courts to follow a similar path. Employers should continue to monitor case law activity under the MMA.

NYC: Proposed Rules Regarding Marijuana Exceptions

Starting May 10, 2020, employers in NYC are prohibited from conducting pre-employment drug tests that search for THC (i.e., marijuana). The New York City Commission on Human Rights (NYCCHR) has proposed rules regarding the exceptions under this law. A hearing on these proposed rules is currently scheduled for April 16, 2020.
 
Under the proposed rules, the exceptions are re-drafted to include the following:

1. Position requires regular work on an active construction site.
2. Position requires employee regularly operate heavy machinery.
3. Position requires employee regularly work on power or gas utility lines.
4. Position requires employee operate a motor vehicle on an approximately daily basis.
5. Impairment would interfere with employee’s ability to take adequate care in the performance of job duties and would pose an immediate risk of death or serious physical harm to the employee or others.

Employers may submit comments to these proposed rules (see the above hyperlink for details) and may also register to speak during the online hearing. Comments must be submitted by April 16^th.

Employer Recommendations

Employers are encouraged to review these cases with qualified legal counsel to determine whether changes are necessary to their drug testing and/or workplace policies. Navigating the marijuana landscape continues to become more complex particularly with a rise in employee-friendly cases law. We saw a rash of new or amended marijuana laws in 2019 – most of which are now in effect – and employers would be wise to review and address these laws.