Health & Science

PA Pot Patient Can Sue Ex-Employer For Discrimination: Judge

By Willis Jacobson Sep 29, 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.
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A federal judge in Pennsylvania ruled that a MED patient can sue her former employer for discrimination after she claimed she was fired for lawful marijuana use. The decision is inline with rulings from other states.

Plaintiff Donna Hudnell alleges Philadelphia-based Thomas Jefferson University Hospitals fired her from her position as a security analyst in October 2019 after she tested positive for THC. At the time, she was returning from a three-month medical leave for back surgery. Hudnell says the hospital discriminated against her by firing her based on her being both a Black woman and a MED patient.

Attorneys for the hospital chain sought to have her claims dismissed on grounds that the Pennsylvania Medical Marijuana Act (MMA), which established the state’s cannabis regulations in 2016, doesn’t expressly include provisions giving workers a private right of action to sue. 

U.S. District Court Judge Gerald Pappert, however, ruled on Sept. 25 that the Pennsylvania Supreme Court would likely find that the MMA was intended to give workers the right to privately enforce its provisions. He based this, in part, on the law’s lack of provisions for other government agencies to enforce workers’ rights.

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Given the absence of any other enforcement mechanisms in the law, Obama-appointee Pappert ruled, the aspects of the law regarding discrimination claims would “ring hollow” without an implied private right of action.

It was the first time a federal court in Pennsylvania had weighed in on the matter, according to the court ruling. (Read the ruling here) The decision noted, however, that courts in four other states – Arizona, Connecticut, Delaware and Rhode Island – had reached similar conclusions after reviewing their respective state’s regulations.

Hudnell’s attorney Greg Greubel said his client is “excited to prove her case in court.”

“The judge found in our favor, which means people now should have some clarity moving forward,” Greubel said. “[This ruling] means you can sue to enforce your rights under the Pennsylvania Medical Marijuana Act if you have been retaliated against or discriminated against based on your cardholder status.”

Although the court ruled that Hudnell has a right of action to file a MED-related discrimination suit against her former employer, it dismissed several of her other claims on grounds that she had not yet fully exhausted all administrative appeals with oversight agencies as required by state law.

Treating pain

Hudnell, who was hired in 2016, began experiencing severe back pain in 2018 that limited her ability to perform some manual tasks, according to the court filings. In August 2018 she visited a doctor employed by the hospital and he certified her for a MED card. 

She says she began using MED after that visit, but that her pain continued to worsen. In May 2019, she received permission to work full-time from home. Two months later, she was involved in an accident that led to her request a leave of absence to undergo spinal surgery.

When Hudnell attempted to return to work in October 2019, the hospital told her she’d need to take a drug test because she had been on leave for more than 90 days. 

Hudnell showed up for the drug test and provided the administering nurse with copies of her prescriptions, including her MED card, according to court documents. It was then, Hudnell said, that the nurse informed her that her MED card had expired in August.

Hudnell claims she had renewed her card three weeks prior to that drug screening, but that she had not been recertified by her physician. She did ultimately get recertified by her doctor five days after the drug screening. Four days later, her supervisor told her she had been fired.

Hudnell alleges in her appeal that her managers told her the recertification was irrelevant since she didn’t have a valid MED card at the time of her drug screening.

Hudnell claims her doctor submitted a letter to her bosses explaining that she had been certified for MED through Aug. 21, 2019, and that THC would likely stay in her system for two months after use. Hudnell says her bosses never responded to the letter.

She further alleges that Thomas Jefferson University Hospitals did not fire a white male employee after he failed a drug test – instead, her appeal says, that employee was offered a chance to seek treatment and keep his job – and that the company had previously accommodated MED use by other white employees.

The suit claims that shows racial bias in the organization’s decision to fire Hudnell.

Hudnell filed grievances over her termination with the U.S. Equal Employment Opportunity Commission (EEOC) and the Philadelphia Commission on Human Relations (PCHR) in October 2019. While the EEOC dismissed her grievance in January, the PCHR has yet to act on Hudnell’s charges.

It’s because of that still-pending decision from the PCHR that Judge Pappert dismissed Hudnell’s other claims in her appeal. The PCHR’s one-year timeline to respond to Hudnell’s claims ends in October.

The ruling by Judge Pappert gives Hudnell the opportunity to revise her complaint and include the dismissed claims after either the PCHR issues its ruling or the one-year deadline passes and the PCHR loses its jurisdiction.

Greubel, Hudnell’s attorney, said he and Hudnell were still considering what they will do after the PCHR deadline. In the meantime, he said, this latest ruling could be a major milestone as the state moves forward with its still-nascent legal cannabis market.

A recent media report, Greubel said, suggested that more than 100,000 Pennsylvanians per day were visiting medical dispensaries during the COVID-19 pandemic this summer. Many, he said could potentially be affected by MED-related workplace discrimination.

“A lot of them were sort of in the dark about whether or not they could get fired just because they used marijuana as medicine,” he said. “This decision helps them understand that they can sue for that and enforce their rights under the [MMA] statute.”

Thomas Jefferson University Hospitals is being represented in the case by Sidney Steinberg and Daniel Thornton, of the Post & Schell law firm. They did not immediately respond to a request for comment.

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