Labor & Employment Law Daily Wrap Up, DISCRIMINATION—W.D. Pa.: Medical marijuana card holder who lost job offer after drug screening advances MMA claim, (Mar 10, 2025)

By Kathleen Kapusta, J.D.

“As a practical matter, it seems to this Court that the MMA would be quite toothless if it only protected an employee’s ability to possess a medical marijuana card, rather than the employee’s ability to take the prescription medication that the card authorizes the individual to use.”

An applicant whose job offer for project engineer was rescinded by a construction management company after he revealed he was a medical marijuana card holder, and after a required drug screen, sufficiently pled that his card holder status was the basis for the adverse employment decision, a federal court in Pennsylvania ruled, declining to dismiss his Medical Marijuana Act claim. He failed, however, to state a claim under the Pennsylvania Human Relations Act for failure to accommodate his medical marijuana use (Davis v. Albert M. Higley Co. LLC, No. 2-23-cv-1975 (W.D. Pa. Mar. 7, 2025)).

In late January 2023, the applicant was offered a project engineer position contingent on the completion of a pre-employment drug screen. In that role, he would not be required to touch energized electrical equipment, work with chemicals requiring a permit, or operate or physically control high voltage electricity. He was also told that he would spend more than 80 percent of his time in the office.

Medical marijuana. Upon receiving a job offer on February 2, contingent on passing a drug screen, the applicant resigned his then current job and informed his prospective employer that he suffered from anxiety, depression, and ADHD, was certified to use medical marijuana to treat those issues and was also proscribed Prozac and Adderall.

He underwent a drug screen on February 10 and on February 21, the company informed him that it had received the results and requested information from his medical provider regarding the estimated THC level that would result from his prescription, an assurance that the prescribed amount would not impair a person such that they could not safely drive a car, and a statement he prescribed amount would not impair a person’s ability to conduct safety sensitive tasks in the construction industry.

Proposed agreement. In response, the applicant explained that while his healthcare provider would not be able to provide a detailed description of the THC levels, she could “state that we have discussed safe and appropriate use, including my understanding of not operating heavy machinery nor driving, climbing ladders, walking on scaffolding, etc., along with my expression of commitment to safe use.” A week later, he told the company he would be willing to sign an agreement stating that he would “refrain from any/all cannabis usage during business (or scheduled work) hours and at any/all times not within these hours in which [he] potentially could find [himself] under the influence, following prior such usage.”

Rescinded. Ten minutes later, the applicant was informed that his employment offer had been rescinded due to the results of his drug screen, which the company refused to provide to him.

MMA claim. Suing under the state’s Medical Marijuana Act (MMA), the applicant argued that but for his status as a medical marijuana cardholder, the company would have hired him and would not have unlawfully rescinded its job offer. Moving to dismiss, the company argued that the MMA protects employees from adverse action only where such action is predicated solely upon the basis of the employee’s cardholder status and the applicant failed to plausibly establish that his status as a medical marijuana card holder was the but-for cause of the rescission decision.

Turning to Pennsylvania state court decisions for guidance, the court here noted that the Pennsylvania Superior Court, in its 2021 Palmiter v. Commonwealth Health Sys., Inc., decision, explained that “The enactment of the MMA in 2016 reflects a public policy designed to protect certified users of medical marijuana from employment discrimination and termination.” Further, in 2024, in Kopinetz v. Waste Mgmt. & Processors, Inc., the court noted that the employer there made an identical argument to the company here—that it fired the employee for a legitimate, nondiscriminatory reason, a positive drug test and the use of marijuana, not solely on the basis of the employee’s cardholder status. In rejecting that argument, the court here observed, the Superior Court concluded that the timing of the termination decision, as well as the theories upon which the employer relied, were issues of fact for the factfinder’s determination.

MMA provisions. Observing that the company here “seemingly advances an overly restrictive reading of the MMA, that, if adopted” could potentially permit adverse action based only upon a positive test for legal marijuana use, the court pointed out that the express language of Section 2103(b)(1) of the MMA “discusses not only cardholder status, but also the use of marijuana, providing that no adverse action can be taken ‘solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.’”

The court also found it noteworthy that pursuant to Subsection (b)(2), an employer is not required to accommodate the use of medical marijuana on its property or premises. Nor does the Act limit an employer’s ability to discipline an employee for being under the influence of medical marijuana at work or for working while under the influence of medical marijuana when the employee’s conduct falls below the position’s applicable standard of care. “If the MMA per se permitted adverse employment action as to any employee who legally used or was under the influence of marijuana outside of the workplace, such a provision would be entirely superfluous,” the court stated.

The MMA, the court further noted, “would be quite toothless it if only protected an employee’s ability to possess a medical marijuana card, rather than the employee’s ability to take the prescription medication that the card authorizes the individual to use.” And while the company argued that the applicant’s positive drug test and failure to provide the requested information from his healthcare provided established a basis other than cardholder status that supported the rescission of his job offer, the court found that these proffered reasons were inextricably connected to his cardholder status.

The applicant, said the court, pled that his position would not have involved “operating heavy machinery nor driving, climbing ladders, walking on scaffolding, etc” Taking that as true, the court found he stated a plausible claim it was his cardholder status, not his failure to provide certifications that his use of marijuana outside of the workplace would not impair him in the driving of a vehicle or in conducting safety sensitive career tasks in the construction industry during work hours, that was the reason for the rescission of his job offer. Without discovery into the nature of the position at issue, and the impact that THC levels from off-site, after-hours marijuana use might have on him in performing his job functions, the court refused to dismiss his claim.

PHRA claim. As to the applicant’s PHRA failure-to-accommodate claim, the court, found the Commonwealth Court of Pennsylvania’s 2020 holding in Harrisburg Area Cmty. Coll. v. Pennsylvania Hum. Rels. Comm’n foreclosed such a claim for the use of medical marijuana. In that case, the state court found that the PHRA’s anti-discrimination provisions do not require accommodation of an individual’s lawful use of medical marijuana. It also noted that the MMA did not reference the PHRA and rejected the argument that the MMA amended the PHRA.

The case is No. 2-23-cv-1975.

Judge: Colville, R.

Attorneys: Tamra Van Hausen (Elzer Law Firm) for Brian Davis. Michael Belko (Margolis Edelstein) for The Albert M. Higley Co., LLC.

Companies: The Albert M. Higley Company, LLC

Cases: Discrimination DisabilityDiscrimination StateLawClaims Cannabis Discharge PennsylvaniaNews