Users of Medical Marijuana Not a Protected Class Under the Pennsylvania Human Relations Act

Pennsylvania’s Commonwealth Court recently handed down a decision holding that employees who lawfully engage in the use of medical marijuana are not protected under the Pennsylvania Human Relations Act (PHRA). The case, Harrisburg Area Community College v. Pennsylvania Human Relations Commission (Swope), was decided on October 29, 2020.

The decision is a victory for employers who do not wish modify drug-free workplace policies to accommodate the use of medical marijuana by employees. Although the Medical Marijuana Act provides that the use or possession of medical marijuana is lawful, and that employers may not “discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee . . . solely on the basis of such employee’s status as an individual who is certified to use medical marijuana,” the Pennsylvania legislature failed to amend the PHRA to expand the definition of the protected class under the act to include users of medicinal marijuana.

Section 4 of the PHRA expressly defines “handicap or disability” as exclusive of current, illegal use of a controlled substance, as defined in section 102 of the federal Controlled Substances Act. Marijuana is a Schedule I controlled substance according to federal law and its use is not permitted under federal law for any reason.

In Swope, the complainant was a nursing student at Harrisburg Area Community College (HACC) and subject to HACC’s drug policy, which forbade the use of any controlled substances and was enforced by annual drug testing. Swope filed a discrimination complaint with the PHRC alleging that she suffered from a disability but could complete the essential components of HACC’s nursing program so long as she was granted a reasonable accommodation to be permitted to take her legally-prescribed medical marijuana. The Court relied on the Medical Marijuana Act provisions regarding employment in holding that employers are not required to provide an accommodation to employees on their premises, and made an analogy to extend this reasoning to the Swope matter.

The passage of the Medical Marijuana Act did not amend the PHRA and in fact does not even mention the PHRA. In sum, because under the definition of disability in the PHRA, protection from discrimination is not extended to those who use any Schedule I drug, users of medical marijuana are not included as a protected class against workplace discrimination in Pennsylvania. Therefore, the Court found that HACC was not required to accommodate Swope’s medical marijuana use and she could be discharged from the nursing program for violations of its policy against drug use.

The Court also noted that under the Medical Marijuana Act, employers are not prohibited from disciplining an employee for being under the influence of medical marijuana in the workplace or for poor performance related to the use of medical marijuana while on the job. Neither are employers required to engage in any conduct that would put the employer in violation of federal law.

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Elizabeth H. Marcon & J. Andrew Kinsey