U.S. DOT Issues Guidance Regarding Drug And Alcohol Testing During COVID-19 Crisis

The U.S. Department of Transportation Office of Drug and Alcohol Policy Compliance issued guidance on March 23, 2020 to provide clarity with respect to existing requirements for DOT-mandated drug and alcohol testing during the COVID-19 crisis. DOT agencies include the Federal Aviation Administration, the Federal Motor Carrier Safety Administration, the Federal Transit Administration, the Federal Railroad Administration, and the Pipeline and Hazardous Materials Administration. In short, DOT drug and alcohol testing requirements remain in effect.  The ODAPC guidance states, in pertinent part:

For DOT-Regulated Employers:

  • As a DOT-regulated employer, you must comply with applicable DOT training and testing requirements. [How to conduct testing is found in 49 CFR Part 40 (see https://www.transportation.gov/odapc/part40 ), while who gets tested and when (along with drug and alcohol-related training requirements) can be found in the applicable DOT modal regulations (see https://www.transportation.gov/odapc/agencies)].
  • However, DOT recognizes that compliance may not be possible in certain areas due to the unavailability of program resources, such as collection sites, Breath Alcohol Technicians (BAT), Medical Review Officers (MRO) and Substance Abuse Professionals (SAP).  You should make a reasonable effort to locate the necessary resources. As a best practice at this time, employers should consider mobile collection services for required testing if the fixed-site collection facilities are not available. [As a reminder, point-of-collection testing or instant tests are not authorized in DOT drug testing (see https://www.transportation.gov/odapc/part40/40-210)].
  • If you are unable to conduct DOT drug or alcohol training or testing due to COVID-19-related supply shortages, facility closures, State or locally imposed quarantine requirements, or other impediments, you are to continue to comply with existing applicable DOT Agency requirements to document why a test was not completed.  If training or testing can be conducted later (e.g., supervisor reasonable suspicion training at the next available opportunity, random testing later in the selection period, follow-up testing later in the month), you are to do so in accordance with applicable modal regulations.  Links to the modal regulations and their respective web pages can be found at https://www.transportation.gov/odapc/agencies.
  • If employers are unable to conduct DOT drug and alcohol testing due to the unavailability of testing resources, the underlying modal regulations continue to apply.  For example, without a “negative” pre-employment drug test result, an employer may not permit a prospective or current employee to perform any DOT safety-sensitive functions, or in the case of the Federal Aviation Administration (FAA), you cannot hire the individual (See 14 CFR § 120.109(1) and (2)).
  • Additionally, DOT is aware that some employees have expressed concern about potential public health risks associated with the collection and testing process in the current environment.  Employers should review the applicable DOT Agency requirements for testing to determine whether flexibilities allow for collection and testing at a later date.
  • As a reminder, it is the employer’s responsibility to evaluate the circumstances of the employee’s refusal to test and determine whether or not the employee’s actions should be considered a refusal as per 49 CFR § 40.355(i).  However, as the COVID-19 outbreak poses a novel public health risk, DOT asks employers to be sensitive to employees who indicate they are not comfortable or are afraid to go to clinics or collection sites.  DOT asks employers to verify with the clinic or collection site that it has taken the necessary precautions to minimize the risk of exposure to COVID-19.
  • Employers should revisit back-up plans to ensure the plans are current and effective for the current outbreak conditions.  For example, these plans should include availability of collectors and collection sites and BAT, and alternate/back-up MRO, as these may have changed as a result of the national emergency.  Employers should also have regular communications with service agents regarding the service agent’s availability and capability to support your DOT drug and alcohol testing program.

For DOT-Regulated Employees:

  • If you are experiencing COVID-19-related symptoms, you should contact your medical provider and, if necessary, let your employer know about your availability to perform work.
  • If you have COVID-19-related concerns about testing, you should discuss them with your employer.
  • As a reminder, it is the employer’s responsibility to evaluate the circumstances of the employee’s refusal to test and determine whether or not the employee’s actions should be considered a refusal as per 49 CFR § 40.355(i).

For Service Agents:

  • As a collector, BAT, laboratory, MRO, or SAP, you should continue to provide services to DOT-regulated employers if it is possible to do so in accordance with State or local mandates related to COVID-19.  Should you have concerns about COVID-19 when testing or interacting with employees, please follow your company policy, directions from State and local officials, and guidance from the Centers for Disease Control and Prevention (CDC).

You are encouraged to continue to monitor guidance from public health officials and to refer to official government channels for additional information related to COVID-19. The CDC provides helpful guidance and insight from medical professionals who closely monitor the virus. The CDC latest updates (https://www.cdc.gov/coronavirus/2019-ncov/index.html). Also for reference, the Occupational Safety and Health Administration has released guidance on preparing workplaces for COVID-19 (https://www.osha.gov/Publications/OSHA3990.pdf).

 

New York City Commission On Human Rights Proposes Exceptions To Prohibitions On Pre-Employment Marijuana Testing

The New York City Commission on Human Rights announced a notice of public hearing and opportunity to comment on a proposed rule providing exceptions to the prohibition on pre-employment marijuana testing that will take effect in the City on May 10, 2020.   Comments on the proposed rule may be submitted in writing by April 16, 2020, or may be made at a public hearing held on April 16, 2020 at 22 Reade Street, New York, New York.

As we discussed in an earlier blog post, the New York City Human Rights Law was amended last year to prohibit employers from conducting pre-employment testing for marijuana, effective May 10, 2020. While the law contains some exceptions, it also provided for additional exclusions for positions “with the potential to significantly impact the health or safety of employees or members of the public as determined by . . . (ii) the chairperson, and identified in regulations promulgated by the commission.”  Now, the Commission is proposing to amend its rules to clarify exceptions to the general prohibition on pre-employment testing for marijuana.

The proposed amendment to Chapter 2 of title 47 of the Rules of the City of New York would add a new section 2-07 that reads as follows:

Section 2-07 Exceptions to the General Prohibition on Preemployment Testing for Tetrahydrocannabinols or Marijuana

(a)  Exceptions Based on Significant Impact to Health or Safety: A position is deemed to significantly impact the health or safety of employees or members of the public and to be exempt from the prohibition on preemployment testing for tetrahydrocannabinols or marijuana under section 8-107(31) of the Administrative Code if:

    1. The position requires that an employee regularly, or within one week of beginning employment, work on an active construction site;
    2. The position requires that an employee regularly operate heavy machinery;
    3. The position requires that an employee regularly work on power or gas utility lines;
    4. The position requires that an employee operate a motor vehicle on an approximately daily basis; or
    5. Impairment would interfere with the employee’s ability to take adequate care in the carrying out of his or her job duties and would pose an immediate risk of death or serious physical harm or the employee or to other people.

(b)  For purposes of this section, a “significant impact on health and safety” does not include concerns that a positive test for tetrahydrocannabinols or marijuana indicates a lack of trustworthiness or lack of moral character.

Anyone wishing to comment on the proposed rules may comment as follows:

  • Website: You can submit comments to the Commission through the NYC rules website at http://rules.cityofnewyork.us.
  • E-mail: You can e-mail comments to policy@cchr.nyc.gov.  Include a reference in the subject line to “Proposed Rules on Preemployment Testing For Marijuana.”
  • Mail:   You can mail comments to the Office of the Chair, New York City Commission on Human Rights, 22 Reade Street, New York New York 10007.
  • Fax: You can fax comments to Zoey Chenitz, Senior Policy Counsel, (646) 500-7330.
  • Speak at the Hearing: Anyone who wants to comment on the proposed rule at the public hearing must sign up to speak. You can sign up before the hearing by emailing policy@cchr.nyc.gov. You can also sign up in the hearing room before the hearing begins on April 16, 2020. You can speak for up to three minutes.

Written comments must be submitted by April 16, 2020.

 

FMCSA Suspends Certain Safety Rules In Response To COVID-19 Outbreak, Excluding Drug and Alcohol Testing

The Federal Motor Carrier Safety Administration announced on March 13, 2020 that due to the COVID-19 outbreak, an emergency exists that warrants an exemption from Parts 390 through 399 of the Federal Motor Carrier Safety Regulations for certain motor carriers and their drivers.  Specifically, the Emergency Declaration provides regulatory relief for commercial motor vehicle operations that are providing direct assistance in support of emergency relief efforts related to the COVID-19 outbreaks, including transportation to meet immediate needs for: (1) medical supplies and equipment related to the testing, diagnosis and treatment of COVID-19; (2) supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19 such as masks, gloves, hand sanitizer, soap and disinfectants; (3) food for emergency restocking of stores; (4) equipment, supplies and persons necessary to establish and manage temporary housing, quarantine, and isolation facilities related to COVID-19; (5) persons designated by Federal, State or local authorities for medical, isolation, or quarantine purposes; and (6) persons necessary to provide other medical or emergency services, the supply of which may be affected by the COVID-19 response. Direct assistance does not include routine commercial deliveries, or transportation of mixed loads that include essential supplies, equipment and persons, along with supplies, equipment and persons that are not being transported in support of emergency relief efforts related to the COVID-19 outbreaks.

Direct assistance terminates when a driver or commercial motor vehicle is used in interstate commerce to transport cargo or provide services that are not in support of emergency relief efforts related to the COVID-19 outbreaks or when the motor carrier dispatches a driver or commercial motor vehicle to another location to begin operations in commerce. Upon termination of direct assistance to emergency relief efforts related to the COVID-19 outbreaks, the motor carrier and driver are subject to the requirements of 49 CFR Parts 390 through 399, except that a driver may return empty to the motor carrier’s terminal or the driver’s normal work reporting location without complying with Parts 390 through 399. However, if the driver informs the motor carrier that he or she needs immediate rest, the driver must be permitted at least 10 consecutive hours off duty before the driver is required to return to the motor carrier’s terminal or the driver’s normal reporting location. Once the driver has returned to the terminal or other location, the driver must be relieved of all duty and responsibilities and must receive a minimum of 10 hours off duty if transporting property, and 8 hours if transporting passengers.

The Emergency Declaration does not provide exemptions from the drug and alcohol use testing requirements (49 CFR Part 382), the commercial driver’s license requirements (49 CFR Part 383), the financial responsibility (insurance) requirements (49 CFR Part 387), the hazardous material regulations (49 CFR Parts 100-180), applicable size and weight requirements, or any other portion of the regulations not specifically exempted under to 49 CFR § 390.23.

The Emergency Declaration is effective until the termination of the emergency or until 11:59 P.M. (ET) on April 12, 2020, whichever occurs sooner.

New Jersey Medical Marijuana User May Proceed With Discrimination Claim

The New Jersey Supreme Court affirmed an appellate court ruling allowing a medical marijuana user to proceed with his disability discrimination claim under the New Jersey Law Against Discrimination (“LAD”).  Wild v. Carriage Funeral Holdings, Inc., No. 082836 (Mar. 10, 2020).

The plaintiff, a cancer patient and lawful user of medical marijuana, was involved in a motor vehicle accident while at work. He told a hospital physician that he possessed a license to use medical marijuana; however, the physician decided not to order a drug test because “it was clear” that the plaintiff was not under the influence of marijuana at that time.  The plaintiff subsequently was required to submit to drug testing by his employer before returning to work. The employer claimed it terminated the plaintiff’s employment due to his failure to disclose his lawful use of marijuana, not the positive drug test result.

The plaintiff filed a suit alleging disability discrimination and failure to accommodate under the LAD. At that time, the state medical marijuana law (Compassionate Use Medical Marijuana Act, “CUMMA”) did not provide employment protections to users of medical marijuana.

The trial court granted the employer’s motion to dismiss after determining that the CUMMA “does not contain employment-related protections for licensed users of medical marijuana.” But the Appellate Division reversed, as we discussed in our earlier blog post, Medical Marijuana Users May Not Be Discriminated Against In New Jersey.  After that decision, the CUMMA was amended expressly to prohibit employers from taking adverse employment actions against a medical marijuana user if that adverse employment action is “based solely on the employee’s status” as a medical marijuana patient. See our article on the amendment, New Jersey Amends Medical Marijuana Law to Provide Job Protections, Include Drug Testing Procedures.

The New Jersey Supreme Court affirmed the Appellate Division’s ruling, concluding that the plaintiff stated a LAD claim that was sufficient to survive a motion to dismiss. Specifically, the plaintiff’s discrimination claims “derived in part from [the plaintiff’s] assertion that, outside the workplace, he lawfully used medical marijuana” for medical reasons, that is, to treat the symptoms of his cancer.  Moreover, there is no conflict between the CUMMA and the LAD, although there are two provisions of the CUMMA that could affect a plaintiff’s claim in certain settings, specifically: (1) the CUMMA does not require an employer to accommodate an employee’s use of medical marijuana in the workplace; and (2) CUMMA does not require an employer to permit any person to “operate, navigate or be in actual physical control of any vehicle, aircraft, railroad train, stationary heavy equipment or vessel while under the influence of marijuana.”

The Court’s decision reminds employers to ensure company policies and protocols regarding medical marijuana meet the requirements in the CUMMA (now known as the Jake Honig Compassionate Use Medical Cannabis Act). More importantly, this case serves as a caution to employers that regardless of the language in a state’s medical marijuana statute, a plaintiff may assert a disability discrimination claim in connection with their disability and related use of medical marijuana. Proper policies, compliant protocols, and training for management and human resources professionals are recommended to avoid potential claims.

FDA Reiterates Potential Safety Risks of Using CBD Products

The U.S. Food and Drug Administration repeated its warning to the public about the potential risks of using CBD products in a statement released on March 5, 2020, FDA Advances Work Related to Cannabidiol Products with Focus on Protecting Public Health, Providing Market Clarity.

The FDA has been evaluating the safety of CBD products for the last year. There are many CBD products on the market such as oil drops, capsules, syrups, food products (such as chocolate bars and teas), cosmetics and other topical lotions and creams, as well as products marketed for pets and other animals. However, the FDA remains concerned that some people wrongly think that the myriad of CBD products on the market have been evaluated by the FDA and determined to be safe, or that using CBD “can’t hurt.” Aside from one prescription drug approved to treat two rare forms of epilepsy, no other CBD products have been evaluated or approved by the FDA.

In particular, the agency recently updated the public on concerns about potential harm from CBD products, including potential liver injury, interactions with other drugs and male reproductive toxicity, as well as side effects such as drowsiness. In addition, little is known about the potential effects of sustained and/or cumulative use of CBD, co-administration with other medicines, or the risks to vulnerable populations like children, pregnant and lactating women, the elderly, unborn children and certain animal populations. The FDA stated that it is “not at a point where we can conclude that unapproved CBD products are safe for use. We encourage Americans to consult with their health care providers before using CBD products.”

The FDA seeks reliable and high-quality scientific research and data regarding CBD and has re-opened its public docket established last year for submission of such research and data.

Another issue that was not addressed by the FDA but which should be noted by users of CBD products is that due to the unregulated nature of these products, they may contain THC – the psychoactive component of marijuana. THC is what causes a positive drug test result for marijuana. A CBD user may test positive for THC on a drug test, even if the user believes that the CBD product has little or no THC in it.

U.S. DOT Issues Warning Regarding Use Of CBD Products By DOT-Regulated Employees

The U.S. Department of Transportation Office of Drug and Alcohol Policy Compliance published a notice on February 18, 2020 concerning the use of hemp and cannabidiol (CBD) products by safety-sensitive employees regulated by DOT’s agencies (including the Federal Aviation Administration, the Federal Motor Carrier Safety Administration, the Federal Transit Administration, the Federal Railroad Administration, and the Pipeline and Hazardous Materials Administration, as well as the U.S. Coast Guard). Among other things, ODAPC stated the following:

“The Agricultural Improvement Act of 2018, Pub. L. 115-334, (Farm Bill) removed hemp from the definition of marijuana under the Controlled Substances Act.  Under the Farm Bill, hemp-derived products containing a concentration of up to 0.3% tetrahydrocannabinol (THC) are not controlled substances.  THC is the primary psychoactive component of marijuana.  Any product, including “Cannabidiol” (CBD) products, with a concentration of more than 0.3% THC remains classified as marijuana, a Schedule I drug under the Controlled Substances Act.

We have had inquiries about whether the Department of Transportation-regulated safety-sensitive employees can use CBD products.  Safety-sensitive employees who are subject to drug testing specified under 49 CFR part 40 (Part 40) include:  pilots, school bus drivers, truck drivers, train engineers, transit vehicle operators, aircraft maintenance personnel, fire-armed transit security personnel, ship captains, and pipeline emergency response personnel, among others.

It is important for all employers and safety-sensitive employees to know:

    1. The Department of Transportation requires testing for marijuana and not CBD.
    2.  The labeling of many CBD products may be misleading because the products could contain higher levels of THC than what the product label states. The Food and Drug Administration (FDA) does not currently certify the levels of THC in CBD products, so there is no Federal oversight to ensure that the labels are accurate. The FDA has cautioned the public that: “Consumers should beware purchasing and using any [CBD] products.”  The FDA has stated: “It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.”  Also, the FDA has issued several warning letters to companies because their products contained more CBD than indicated on the product label.
    3. The Department of Transportation’s Drug and Alcohol Testing Regulation, Part 40, does not authorize the use of Schedule I drugs, including marijuana, for any reason. Furthermore, CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result. Therefore, Medical Review Officers will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.

It remains unacceptable for any safety-sensitive employee subject to the Department of Transportation’s drug testing regulations to use marijuana.  Since the use of CBD products could lead to a positive drug test result, Department of Transportation-regulated safety-sensitive employees should exercise caution when considering whether to use CBD products.”

Employer’s Request to Count Employee’s Prescription Medication Sufficient to Support Invasion of Privacy Claim

A federal court in Alabama held that an employer’s request to count an employee’s prescription medication – in connection with a drug test that the employee passed – supported the employee’s claim for invasion of privacy. Effinger v. Birmingham-Jefferson County Transit Authority, Case no. 2:19-cv-00766-KOB (N.D. Al. Jan. 23, 2020).

The plaintiff was a former employee employed as a bus driver for the Birmingham-Jefferson County Transit Authority. According to the bus driver, she was required to undergo a drug test that was labelled a “post-accident drug test” on a form that she was made to sign (even though she had not been involved in an accident). She then was required to submit to a directly-observed urine collection and suspended pending receipt of the drug test result.

A week later, the bus driver returned to work to discuss her drug test result, which she had passed. The employer required her to bring her medications with her. The bus driver brought empty containers for her birth control and another medication that was prescribed to be taken “as needed” when off-duty since her involvement in a bus accident five years earlier. The employer’s Human Resources representative told the bus driver that she was required to bring the actual medication to work so that the Human Resources representative could count it. The bus driver refused, because she thought that the handling of her medication would be unsanitary and unnecessary.

The bus driver’s employment subsequently was terminated, allegedly due to a perception that she was “mentally ill” and posed a “direct threat” of harm. She filed suit, alleging among other things that she was “regarded as” disabled, and that the request to count her medication constituted an invasion of privacy.

The employer made a motion for judgment on the pleadings which the court denied. Specifically, the court held that the bus driver adequately pled that she was terminated based on a perception that she was disabled, i.e., mentally ill.   Moreover, she adequately pled her invasion of privacy claim. The court held that “a reasonable person could find that a coerced investigation of medication meant to be ingested, constitutes a highly offensive intrusion into personal affairs that would cause outrage or mental suffering.” In addition, a reasonable person could find the request to count the medication suspect given that the bus driver already had passed the drug test.

DEA’s National Drug Threat Assessment Shows Marijuana Potency and Demand Increasing; Black Market Operations Thriving

The U.S. Department of Justice’s Drug Enforcement Administration published its 2019 National Drug Threat Assessment on January 30, 2020. The DEA’s annual report is a comprehensive strategic assessment of the threat posed to the United States by domestic and international drug trafficking and the abuse of drugs. It compiles data from many sources, including drug seizures, laboratory analyses, information on the involvement of organized criminal groups, and survey data provided to DEA by state and local law enforcement agencies across the country.

Highlights of the DEA’s report include the following:

  • Marijuana remains the most commonly used illicit drug in the United States. Most states that have legalized marijuana have placed no limits on the Tetrahydrocannabinol (THC) potency of marijuana or its associated concentrate products. (THC is the psychoactive component of marijuana). Consequently, THC potency continues to increase, as does demand. Mexico remains the most significant foreign source for marijuana available in the U.S., but domestic marijuana production and availability continues to rise. Black market marijuana production by criminal trafficking organizations continues to increase, predominantly in states that have legalized marijuana. The popularity of marijuana use, the demand for increasingly potent marijuana and marijuana products, the potential for substantial profit, and the perception of little risk entice diverse traffickers and criminal organizations to cultivate and distribute illegal marijuana throughout the U.S.
  • Drug poisoning deaths are the leading cause of injury death in the U.S. In 2017, drug poisoning deaths reached their highest recorded level (information for 2018 and 2019 was not available) and, every year since 2011, have outnumbered deaths by firearms, motor vehicle crashes, suicide and homicide.
  • Fentanyl and other highly potent synthetic opioids – primarily from China and Mexico – continue to be the most lethal category of illicit substances misused in the U.S. Fentanyl continues to be sold as counterfeit prescription pills as traffickers are increasingly selling fentanyl to users both alone and as an adulterant, leading to rising fentanyl-related deaths.
  • Heroin-related overdose deaths remain at high levels in the U.S., due to continued use and availability. Heroin-only overdose deaths declined in 2017, while heroin-fentanyl overdose deaths continued to climb.
  • Controlled Prescription Drugs are still responsible for most drug overdose deaths and are the second most commonly abused substances in the U.S.
  • Methamphetamine remains widely available, with traffickers attempting to create new customers by expanding into new, non-traditional methamphetamine markets such as the Northeast, or other bases with new product forms.
  • Cocaine is a resurgent threat in the U.S. and cocaine-involved overdose deaths continue to climb, primarily due to the continued spread of fentanyl into the cocaine supply.

 

DOT Random Drug and Alcohol Testing Rates for 2020

The Department of Transportation’s operating agencies have announced their random drug and alcohol testing rates for 2020. The Federal Motor Carrier Safety Administration has raised its random drug testing rate to 50% for 2020. All other random testing rates remain unchanged from 2019.

 

Agency 2020 Random Drug Testing Rate 2020 Random Alcohol Testing Rate
Federal Aviation Administration

 

25% 10%
Federal Motor Carrier Administration

 

50% 10%
Federal Railway Administration

 

25% covered service 10% covered service
Federal Railway Administration 50% maintenance-of-way 25% maintenance-of-way
Federal Transit Administration

 

50% 10%
Pipeline and Hazardous Materials Safety Administration

 

50% N/A
United States Coast Guard*

 

50% N/A

* part of Dept. of Homeland Security

Pennsylvania Court Holds Employees May Sue Under Medical Marijuana Act

A Pennsylvania state court held that the state’s Medical Marijuana Act creates a private right of action for medical marijuana users to sue their employers. Pamela Palmiter v. Commonwealth Health Systems, Inc., Civ. Action No. 19 CV 1315 (Pa. Ct. C.P. Lackawanna County, Nov. 22, 2019).

The employee, Pamela Palmiter, was employed as a medical assistant. To treat her chronic pain, migraines and persistent fatigue, she became a medical marijuana patient in accordance with Pennsylvania law in December 2018. She immediately informed her employer. The employer was being acquired by another entity, and Ms. Palmiter claims that she was told her use of medical marijuana would not affect her employment. In connection with the acquisition, Ms. Palmiter was required to undergo a drug test. Soon thereafter, she was advised that she was not permitted to work because of her drug test result.

Ms. Palmiter asserted claims for violation of the Pennsylvania Medical Marijuana Act (“MMA”), breach of contract, invasion of privacy, violation of public policy, and intrusion on seclusion. The employer argued that Ms. Palmiter could not pursue a private right of action under the MMA, that she had no employment contract, and that there was no public policy violation, among other things.

The MMA provides that “[n]o employer may discharge . . . 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.” Because the law does not expressly grant or deny a private right of action to an aggrieved employee, the court undertook a 3-part analysis to determine whether the statute provides a private remedy. Specifically: (1) whether the plaintiff is one of the class for whose “especial” benefit the statute was enacted; (2) whether there is any indication of legislative intent, explicit or implicit, to create or deny such a remedy; and (3) whether it is consistent with the underlying purposes of the legislative scheme to imply such a cause of action. Among other things, the court found persuasive cases in other states ruling that there was an implied cause of action under the state medical marijuana law. E.g., Noffsinger v. SSC Niantic Operating Co, LLC, (D. Conn. 2017); Callaghan v. Darlington Fabrics Corp., (R.I. Super. 2017); Chance v. Kraft Heinz Foods Co., (Del. Super. 2018); Whitmire v. Wal-Mart Stores, Inc., (D. Ariz. 2019). Like these other courts, the Pennsylvania court held that “[w]ithout the availability of an implied right of action for an employee who is fired solely for being certified as a medical marijuana user, the anti-discrimination directive in [the MMA] would be rendered impotent.”

The court also held that the termination “implicates a clear mandate of public policy” because the law prohibits employers from using an employee’s status as a medical marijuana user as a basis for termination.

While this case is not binding on all other courts in Pennsylvania, employers should consider carefully all adverse employment decisions involving medical marijuana users.

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