In a July 26, 2017 Press Release, the Pennsylvania Department of Health announced the opening of its Practitioner Registry. This marks the next critical step in implementing Pennsylvania’s Medical Marijuana Program, which the DOH expects to be fully operational by 2018. Physicians can find out more about the Medical Marijuana Program here and complete the Registry here.

Last month, the DOH released final Regulations for Physicians and is now officially soliciting doctors to participate in the program. The role of physicians is essential for patients who wish to use medical marijuana, as Pennsylvania law requires every patient to receive a “Certification” from a licensed practitioner that the patient has a “serious medical condition” and that the use of medical marijuana would benefit the patient. See 35 P.S. § 10231.403.

Under the current Regulations, the registry will be publicly available and will include each practitioner’s name, business address, and medical credentials. According to the Press Release, the DOH, “surveyed physicians and found that of the 191 that participated, 75 percent said they would register with the program.”

Now the hope for patients, grower/processors, and dispensaries is that these physicians follow through on the registration and complete the puzzle necessary to move the program forward. Stay tuned here for more updates!

Joseph McNelis works in Fox Rothschild’s Blue Bell, PA office and focuses his practice on labor and employment matters. Joe also tracks legal developments in the cannabis industry in Pennsylvania and nationwide. Joe can be contacted at 610-397-2332 or jmcnelis@foxrothschild.com.

Yesterday, I blogged about the recent decision from the Massachusetts Supreme Court, Barbuto v. Advantage Sales and Marketing, in which the Court held that an employee could pursue her claims for disability discrimination after she was terminated for testing positive for marijuana.

Over at Fox’s Employment Discrimination Report blog, my colleague Justin Schwam has further analysis on the decision. Check out Justin’s post here.

Joseph McNelis works in Fox Rothschild’s Blue Bell, PA office and focuses his practice on labor and employment matters. Joe also tracks legal developments in the cannabis industry in Pennsylvania and nationwide. Joe can be contacted at 610-397-2332 or jmcnelis@foxrothschild.com.

In a decision awaited by many in the industry, the Massachusetts Supreme Judicial Court ruled that a licensed medical marijuana user who was fired after testing positive for marijuana can proceed with claims under the state’s “handicap discrimination” statute. The case is Cristina Barbuto v. Advantage Sales and Marketing and the Court’s opinion was issued on July 17, 2017.

After accepting a job offer from Advantage Sales and Marketing, Barbuto was told she would be required to undergo a drug test. Barbuto, who was a licensed medical marijuana user in Massachusetts and used the drug to treat Crohn’s disease, informed her employer that she was a licensed user and would test positive on the test. She also informed her employer that she did not use the drug daily and would not consume it before work.

Several months later, Barbuto was informed that she was being terminated because she tested positive for marijuana on a drug test. Barbuto filed suit, alleging that her termination violated Massachusetts’ medical marijuana statute, the state’s disability discrimination law, and public policy. Several of the plaintiff’s claims—including disability discrimination and wrongful termination—were dismissed and the plaintiff appealed.

The Massachusetts Supreme Court found that the Barbuto was a “handicapped person” under the state’s disability statute, and that her use of medical marijuana recommended by her doctor was a “reasonable accommodation,” thus finding that she stated a prima facie case of discrimination. And the court denied the defendant’s arguments that allowing Barbuto to use marijuana was per se unreasonable, because marijuana was illegal under federal law, as well as the argument that allowing Barbuto to use marijuana posed an “undue hardship,” both of which are defenses under the statute. Therefore, these claims will proceed in the trial court.

However, the court affirmed the dismissal of other claims by Barbuto, including her claim under the state medical marijuana statute. The court found that the statute did not create a private right of action, and found there was not a sufficient basis to imply such a right. This ruling contrasts with a similar recent case from Rhode Island (which I blogged about yesterday) where the state court there implied a private cause of action under the state medical marijuana statute.

The main takeaway from this case is that – regardless of the provisions of your state medical marijuana statute or the fact that marijuana use is still illegal under federal law – is that employers should engage in an interactive process with employees who are licensed medical marijuana users before taking any adverse employment actions. Furthermore, it is always critical to document such a process and, where applicable, to tie the employment decision to factors (e.g., safety and ability to complete the job) other than simply stating that the employee is a marijuana user.

For more tips for employers, check out my post from yesterday.

Joseph McNelis works in Fox Rothschild’s Blue Bell, PA office and focuses his practice on labor and employment matters. Joe also tracks legal developments in the cannabis industry in Pennsylvania and nationwide. Joe can be contacted at 610-397-2332 or jmcnelis@foxrothschild.com.

In one of the first “employee friendly” decisions on this issue, a Rhode Island state court granted summary judgment to a plaintiff job applicant who sued for employment discrimination on the basis of her medical marijuana use. After the plaintiff disclosed as part of the application process that she was a medical marijuana user and would not pass the required pre-employment drug test, the company did not hire her and she filed suit. The case is Callaghan v. Darlington Fabrics Corp.

The trial court made several important holdings that could guide other courts examining this issue:

1. The court first held that Rhode Island’s medical marijuana law, the Hawkins-Slater Act, did provide a private right of action for individuals licensed under the Act, although the Act does not specifically provide for a private cause of action. The court reasoned that, without implying a right of action, the provisions protecting users of medical marijuana would have no effect.
2. The court held that Rhode Island state law was not preempted by federal law, which prohibits the possession and use of marijuana. In doing so, the Court referenced legislation by Congress which prohibits the Department of Justice from using funds to prevent states from, “implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” (Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, § 537).
3. The Hawkins-Slater Act prohibits an employer from taking an adverse employment action against an employee, “solely for…her status as a cardholder.” In examining the facts, the court found that the employer’s stated reason for refusing to hire–that the plaintiff could not pass a drug test–constituted a violation of this provision.
4. Lastly, the Court found that the employer’s action constituted a violation of the Rhode Island Civil Rights Act, which prohibits (among other things) disability discrimination.

The decision has since been appealed by the employer, and employment litigators like myself will be eager to see how the Rhode Island Supreme Court views these issues. While this decision is one of the first to find that federal law is preempted and potentially allowing medical marijuana use by employees, all employers should take lessons from this decision.

First, employers should examine their hiring and adverse action decisions to ensure they have a basis other than an employee’s status as a lawful user of cannabis in their state. Next, in considering the ADA and similar state laws, employers should ensure that it ties its decision to the hardship in accommodating the employee, the employee’s inability to complete the job due to their condition, and/or a decline in the employee’s performance. It would also be wise to engage in an initial interactive process with the employee to determine whether it is feasible to make accommodations for the employee to lawfully use cannabis away from the workplace and still perform their job duties.

As more and more states (including my home state, Pennsylvania) implement medical marijuana programs, employers will be faced these difficult decisions and should look to their counselors and the approaches of other states to determine best approach.

Joseph McNelis works in Fox Rothschild’s Blue Bell, PA office and focuses his practice on labor and employment matters. Joe also tracks legal developments in the cannabis industry in Pennsylvania and nationwide. Joe can be contacted at 610-397-2332 or jmcnelis@foxrothschild.com.