PELRAS Update | April 2022 – Medical Marijuana, CBD Oil and the Workplace:  Recent Case Developments

Paul N. Lalley, Esq., Campbell Durrant, P.C. | April 2022

The tension between federal law and state laws legalizing marijuana (and related products like CBD oil) for medical purposes has presented problems for Pennsylvania’s public employers that our firm has discussed in prior articles regarding Pennsylvania’s Medical Marijuana Act.  A federal court in Pennsylvania recently dismissed a case in which the plaintiff claimed that she was discriminated against based on her use of CDB oil.  In a separate development, the United States Supreme Court is being asked to consider whether state laws that require workers’ compensation reimbursement of medical marijuana costs violates federal law.  Both cases are worth monitoring to see how courts are grappling with the different status accorded medical marijuana under state and federal law.

In Lehenky v. Toshiba American Energy Corporation, Ms. Lehenky was dismissed from her job after a random drug test disclosed THC in her system.  She was selected for the test as part of her employer’s Drug Free Workplace policy.  Plaintiff claimed that the positive test result was because she was taking CBD oil for pain relief.  Her lawsuit alleged her dismissal violated the Americans with Disabilities Act and the Pennsylvania Human Relations Act.  In dismissing the complaint, the court noted that the employer’s policy required employees to notify human resources if they were taking anything (such as medical marijuana or CBD oil) that would otherwise violate the Drug Free Workplace policy and to provide documentation specifying the type and amount.  Ms. Lehenky failed to do this until after she had already taken the drug test, and even when she did, the court concluded that her documentation (which was just a brief note from her physician dated after the failed drug test) was “sorely lacking in any details.”  The court found that the employer was therefore allowed to treat her as anyone else who had failed a drug test and did not violate the ADA or the PHRA in terminating her employment. 

Importantly, the court concluded that the plaintiff was not protected under the ADA because her termination was based on her use of “illegal drugs” and the ADA specifically excludes such behaviors from the Act’s protections.  That decision has been appealed.

In Musta v. Mendota Heights Dental Center, the United States Supreme Court is being asked to review whether the federal Controlled Substances Act preempts an order under a state workers’ compensation law that requires an employer to reimburse an employee for the costs of medical marijuana used to treat a work-related injury.  The issue of whether medical marijuana constitutes a “reasonable and necessary medical treatment” for workers’ compensation payment purposes is being litigated in Pennsylvania’s workers’ compensation system and is the subject of proposed legislation such as House Bill 2038 of 2021 that would specifically authorize such payments. 

In Musta, the Minnesota Supreme Court ruled that the federal Controlled Substances Act preempted a state workers’ compensation order that required reimbursement for medical marijuana used to treat a work-related injury – meaning, because marijuana is still an illegal substance under federal law, it violates federal law to require an employer to pay for an employee’s use of it, even if done for medical reasons.  The petitioners in Musta note that there is an even split of the decisions in the highest courts of the states that have reviewed this federal preemption question.  The U.S. Supreme Court has not yet decided whether it will hear the case; however, what is noteworthy is that on February 22, 2022, the Court invited the United States Solicitor General to file a brief expressing the government’s position on this federal preemption issue. 

If the U.S. Supreme Court decides to hear the case and ultimately finds that the Controlled Substances Act has preemptive effect, it would be very interesting to see how far such a decision reaches and whether it extends to state laws such as Pennsylvania’s Medical Marijuana Act and state laws that have decriminalized recreational marijuana use.  It is certainly a case worth monitoring and the attorneys at Campbell Durrant are available to assist you with questions about the legal issues implicated in employee use of medical marijuana.