Health & Science

Appeals Court Upholds Unemployment Benefits for Fired MED Patient

By Willis Jacobson Nov 20, 2020
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Willis Jacobson is an award-winning journalist whose career has spanned both coasts. Now based on the Central Coast of California, he has covered cannabis news and issues since 2015.
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Willis Jacobson is an award-winning journalist whose career has spanned both coasts. Now based on the Central Coast of California, he has covered cannabis news and issues since 2015.
See my articles
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A Pennsylvania MED patient who was fired after a positive drug test is entitled to unemployment benefits, a Pennsylvania appeals court has ruled.

The court sided with Terrence Suber, a former employee of the Pittsburgh Water and Sewer Authority, in its decision. Suber, who had worked as a customer service representative for four months before his firing in July 2019, had previously been denied unemployment benefits, but that denial was overturned in January by the Unemployment Compensation Board of Review (UCBR). 

The UCBR’s ruling was upheld Wednesday by the appeals court, which found that the Pittsburgh Water and Sewer Authority’s written drug policy, combined with verbal information that Suber received from a human resources employee with the agency, was ambiguous regarding the use of prescription drugs.

In the ruling opinion, written by Judge Anne E. Covey, the court agreed with the UCBR that although Suber’s employer rightfully had a policy prohibiting the use of illegal substances, Suber was unaware he would be fired for using lawfully prescribed MED.

The case raises a host of issues that could impact how employers and government agencies adjust or develop policies surrounding MED or REC use in state-legal markets.

In Suber’s case, the Pittsburgh Water and Sewer Authority maintained a drug policy that prohibited employees from using substances on or off duty that were considered illegal under state or federal law. Marijuana remains illegal federally, but Pennsylvania has a legal MED market.

Further complicating the issue is that Suber, according to the court documents, was told by an HR rep during his new-job orientation that positive drug test results wouldn’t be released to his employer if he verified his lawful prescriptions with a medical review officer (MRO).

Suber obtained a MED card on June 10, 2019, according to the filing, and was selected for a random drug screening just 15 days later. After testing positive for marijuana, Suber allegedly provided the MRO with a copy of his MED identification card, but his results were forwarded to his employer anyway.

Suber was fired July 3, 2019, due to the positive test.

Suber was initially denied unemployment benefits in September 2019, but that decision was reversed in January by the UCBR, which found that Suber had made good-faith efforts – including by furnishing his MED prescription – to comply with his employer’s drug policy.

The Pittsburgh Water and Sewer Authority took the case to the appeals court in March with the hope that Suber’s denial would be reinstated.

In upholding the UCBR’s decision, the appeals court noted that Suber followed the plain language of the Pittsburgh Water and Sewer Authority’s drug policy, which allows employees with lawful prescriptions to use those prescriptions to counter positive drug tests.

Cannabis use and its effects on employment – or unemployment – benefits is becoming an unavoidable topic for regulators.

Lawmakers in neighboring New Jersey have grappled with related issues as they have worked to develop regulations in the weeks since voters approved a ballot initiative to legalize REC on Election Day.

A bill proposed by the New Jersey Senate had included an amendment that would provide broad protections for employees who use cannabis on their personal time. By Thursday night, however, some of that language was removed by the Senate Budget and Appropriations Committee, which opted to give employers discretion with how they administer drug tests, according to NJ.com.

That language regarding drug testing led to some debate among lawmakers. The bill, which will allow employers to drug test employees they suspect of being high at work, was advanced to the state Assembly for possible adoption.

This year, NORML also trained its sights on pushing for unemployment protections for workers in state-legal cannabis businesses. In March, shortly after COVID-19 restrictions went into effect, the advocacy group called on federal lawmakers to ensure that any unemployment insurance aid packages provide relief to those in the regulated cannabis industry who are laid off or furloughed.

“Given the tremendous amount of uncertainty in the broader economy, the hundreds of thousands of American workers who are employed by the state-legal marijuana industry must be respected and protected by the emergency actions being taken by elected officials,” Justin Strekal, NORML’s political director, said at the time.

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