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Medical Marijuana, Health-Care students, NO Reasonable Accommodation

| Nov 12, 2020 | Blog, Criminal Defense, Medical Nursing, Professional License Application, Professional License Issues |

I write extensively about medical marijuana and health care related employment.  https://www.phila-criminal-lawyer.com/medical-marijuana/I write extensively about Pennsylvania’s Medical Marijuana Act and issues associated with securing a Medical Marijuana Card in Pennsylvania. I write and litigate extensively about Pennsylvania’s health related boards’ alcohol and drug impairment program (the VRP, PHMP, and PNAP, SARPH, and the PHP). https://www.phila-criminal-lawyer.com/phmp/

Applying for a Pennsylvania medical marijuana card requires applicants to verify they suffer from the medical disability not treatable by any scheduled medication; that the only means of treatment is to take legally prescribed medical marijuana. I advise every health care professional this is a dangerous and career ending decision to make.

Although medical marijuana is now legal in Pennsylvania, employers do not have to employ individuals under the influence of marijuana while on the job. That is a federal Occupational and Safety Health Administration (OSHA) rule.  Pennsylvania hospitals are also not required to employ health care professionals who are under the influence of medical marijuana while on the job.  Drug testing is allowed and proper.  Testing positive for marijuana ingestion but possessing an MMA card does not eliminate the event as reportable under Pennsylvania’s health care related regulations.

I also represent many students in the healthcare space (graduate training nurses, pharmacists, or doctors) who during school are investigated and charged with DUI or possession of drugs (a Pennsylvania Drug Act). These cases become evidence of a potential impairment for a future applicant of a Pennsylvania health care license.

In a recent case, Pennsylvania’s Commonwealth court was called to interpret the intersection of the Pennsylvania Human Relations Commission regulations as they apply to a nursing student’s request for a reasonable accommodation to be permitted to ingest legally prescribed medical marijuana medication due to her suffering medically diagnosis disability of PTSD and Irritable Bowel Syndrome.   Harrisburg Area Community College v. Pennsylvania Human…, — A.3d —- (2020).

The case involved Pennsylvania Fair Educational Opportunities Act (PFEOA) and Pennsylvania Medical Marijuana Act (MMA).  The sole issue on appeal is whether the anti-discrimination provisions of PHRA and PFEOA require accommodation of the nurse’s lawful use of medical marijuana under the MMA.  First the Court looked at the Federal Controlled Substance Act (Federal CSA).

The Federal CSA expressly includes marijuana on the list of drugs which are described as having no accepted medical use. In other words, Schedule I drugs are scheduled as such because Congress has determined that the drug has (1) a high potential for abuse, (2) no currently accepted medical use, and (3) a lack of accepted safety for the use of the drug under medical supervision. “Schedule I drugs are categorized as such because of their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment.”.

This is in contrast to Pennsylvania’s MMA.  MMA provides generally that the use or possession of medical marijuana is lawful and states that “[n]otwithstanding any provision of law to the contrary, use or possession of medical marijuana as set forth in [the MMA] is lawful within this Commonwealth.” 35 P.S. § 10231.303(a) (emphasis added). Section 2101 of the MMA provides that the “possession and consumption of medical marijuana permitted under [the MMA] shall not be deemed to be a violation of the [Pennsylvania Drug Act]. If a provision of the [Pennsylvania Drug Act] relating to marijuana conflicts with a provision of [the MMA], this act shall take precedence.” 35 P.S. § 10231.2101.

It is for employers, however, the MMA section 2103(b) of the MMA, provides, in full:

(b) Employment.

(1) No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.

(2) Nothing in this act shall require an employer to make any accommodation of the use of medical marijuana on the property or premises of any place of employment. This act shall in no way limit an employer’s ability to discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted for that position.

(3) Nothing in this act shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of Federal law.

35 P.S. § 10231.2103(b) (emphasis added).

 

After reviewing the rules of statutory construction and other cases discussing legislative intent Commonwealth court concludes:

 

Although the MMA provides that medical marijuana use is lawful in Pennsylvania, given the silence in the MMA with respect to PHRA and PFEOA and the absence of any specific protection for students, there is no reason to infer that the General Assembly intended to require educational institutions to accommodate a student’s use of medical marijuana.

 

In Looking at how other states addressed the impact of legalizing recreational marijuana, Commonwealth court turned to The California Supreme Court. After the plaintiff was discharged by his employer for medical marijuana use, he brought a lawsuit against his employer under California’s anti-disability discrimination law. Id. Like PHRA, California’s anti-discrimination law did not require employers to accommodate the use of illegal drugs. Id., 70 Cal.Rptr.3d 382, 174 P.3d at 204-05. The California Supreme Court determined that although California voters had decided to legalize medical marijuana for certain uses, there was nothing in California’s medical marijuana law to suggest that California voters intended the law to require employers to accommodate employees’ medical marijuana use under California’s anti-discrimination law. Id., 70 Cal.Rptr.3d 382, 174 P.3d at 205-07. The absence of any statutory provision requiring accommodation of medical marijuana usage by students renders the circumstance analogous to that at issue in Ross. That is, there is nothing in the MMA suggesting that the General Assembly intended to require educational institutions to accommodate students’ usage of medical marijuana under PHRA or PFEOA.

 

The Court thereafter concludes: The MMA does not provide any requirements for accommodations of post-secondary students who use medical marijuana for a disability. Moreover, the General Assembly chose not to amend PHRA or PFEOA after passage of the MMA to otherwise remove the applicability of the Federal CSA, which prohibits the use of Schedule I drugs, including medical marijuana. For these reasons educational institution are not required to provide students with any reasonable accommodation for her use of medical marijuana.

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