Medical Marijuana gets a New “Test Case” in PA

November 4, 2019 | By Andrew J. Horowitz

In a new case filed in the Court of Common Pleas of Allegheny County, Pennsylvania on October 10, 2019 at Docket No. GD-19-014418, Derek Gsell of Moon Township, Pennsylvania is suing Universal Electric Corporation for rescinding a job offer because he tested positive for THC (the active ingredient in marijuana) in a pre-employment drug test. Mr. Gsell possesses a Pennsylvania medical marijuana card, which allows him to purchase and use marijuana for medical purposes.

As reported earlier this year by HR Legalist, suits have been brought in other states with similar medical marijuana legislation. Section 2103 of Pennsylvania’s Medical Marijuana Act (previously discussed by HR Legalist here), prohibits employers from taking certain adverse actions against employees based on their legal usage of medical marijuana. Employers, however, are not required to allow employees to come to work under the influence of medical marijuana when the employee’s conduct “falls below the standard of care normally accepted for that position.”  The act also contains exceptions for acts that would put the employer in violation of Federal law.

According to Mr. Gsell’s complaint, he accepted a job offer that was contingent upon successful completion of among other things, a pre-employment drug screen. He underwent a pre-employment hair follicle drug test provided by a third-party contractor. When the contractor informed Mr. Gsell that he had failed the drug test, he provided a copy of his medical marijuana card. The contractor updated his test result to state, “the donor claimed medical marijuana use and provided documentation supporting this claim in the state of PA. Recommendation expires 9-3-20.” Later that afternoon, Universal Electric’s HR Generalist called Mr. Gsell to inform him that his offer would be rescinded because of his drug test result. Mr. Gsell again stated that he had a prescription for medical marijuana. Universal Electric then sent Mr. Gsell an email confirming that his position was “no longer available due to your positive drug screen results.”

Mr. Gsell’s complaint also notes that the position in question did not involve the use of any chemicals, high voltage electricity, or heavy equipment, and mostly consisted of paperwork at a desk. Universal Electric has not yet responded to the Complaint.

Mr. Gsell’s claim is a very clean test case for the practicalities of enforcing an employee’s rights under Section 2103 because Universal Electric (at least according to the complaint) stated its reason for rescinding the offer in an email.  Under these circumstances, it will be difficult for Universal Electric to claim that Mr. Gsell’s marijuana use would cause him to fall below the standard of care for the position. This case does present some uncharted legal issues and it will be interesting to watch its progression through the courts.

In the meanwhile, employers are well-advised to avoid being the next test case. Drug testing policies should be updated to reflect Section 2103, and employers should carefully analyze whether the employee is protected by Section 2103 before making any adverse employment decision regarding any employee who is a legal medical marijuana user.

About the Authors

Andrew Horowitz

Andrew J. Horowitz

Associate

Andrew is a strategic and pragmatic attorney who focuses his practice on complex commercial litigation and employment law matters. Andrew serves as a trusted advisor to his clients. He enjoys taking a...

Read More by Author