KingSpry | NJ Medical Marijuana Provides False Security for PA

Guidance from the Courts on Medical Marijuana Hits a Little Closer to Home

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Posted on January 2nd, 2019
by Timothy E. Gilsbach

A recent case out of Delaware may shed some additional light on what employers in Pennsylvania can expect on the issue of medical marijuana.

In the case of Chance v. Kraft Heinz Food Co., (Del. Super. Ct., Dec. 17, 2018), the court found that an employee who used medical marijuana and was fired after a positive drug test could pursue a case for wrongful discharge against his former employer.

Following the growing trend of cases nationwide, the court found that Delaware’s Medical Marijuana Act, which is similar to Pennsylvania’s, creates a private cause of action for an employee who believes that they were terminated due to their use of medical marijuana.

Delaware’s law, like Pennsylvania’s, includes an anti-discrimination provision related to employment and the court found that there would be no mechanism to enforce the law without a private cause of action – or the right of an employee to sue their former employer.

In addition, the Chance Court rejected an argument by the employer that allowing the use of medical marijuana would violate federal law and that because federal law makes the use or possession of marijuana, even for medical purposes, illegal, federal law should trump state law on this issue.

The Court explained, as other courts have, that the state’s medical marijuana law “does not require employers to participate in illegal activity … but instead merely prohibits them from discriminating based upon medical marijuana use.”

While the case is not binding on Pennsylvania Courts, many courts are more likely to accept arguments from another state when the statutes at issue are similar to one another – which in this case Pennsylvania’s and Delaware’s statutes are very similar – and when the other state is geographically closer to your state – in this case you can’t get much closer to Pennsylvania than Delaware.

As a result, employers in Pennsylvania should be careful when dealing with employees who use medical marijuana to ensure compliance with Pennsylvania’s Law and should consider reviewing possible employment actions against such employees with legal counsel.



The Eastern Pennsylvania Employment Log (EPELog) is a publication of the KingSpry Employment Law Practice GroupJeffrey T. Tucker, Esquire, is our editor-in-chief. EPELog is meant to be informational and does not constitute legal advice.