Addressing a case of first impression in the case of Palmiter v. Commonwealth Health Systems, Inc., No. 19-CV-1315 (C.P. Lacka. Co. Nov. 22, 2019 Nealon, J.), Judge Terrence R. Nealon reviewed Preliminary Objections filed by employers in this employment litigation raising a novel issue that has not yet been addressed by any state or federal court in Pennsylvania, that being the question of whether §2103(b)(1) of the Medical Marijuana Act (“MMA”), 35 Pa. S. §10231.2103(b)(1), which states that “[n]o employer may discharge… or otherwise discriminate or retaliate against an employee…solely on the basis of such employee’s status of an individual who is certified to use medical marijuana” creates a private cause of action for a medical assistant who was terminated by her health care employers for prescribed use of medical marijuana while not working in her place of employment.
The Defendants noted that the Department of Health has the exclusive authority to enforce the MMA’s provisions such that the employee’s sole remedy for her termination should be to seek the assessment of a civil penalty by the Department of Health.
|Judge Terrence R. Nealon
After his review of the law, Judge Nealon held that there was nothing the MMA or any related regulations that vests the Department of Health, or any other state agency, with the authority to enforce the Act against private employers that have not chosen to voluntarily take part in the program.
The court also noted that the anti-discrimination provisions in the act would be rendered meaningless if an aggrieved employee could not pursue a private cause of action and seek to recover compensatory damages from an employer that violates the MMA.
As such, the court recognized an implied right of action under the act and, therefore, denied the employers’ demurrer to the employee’s private cause of action based upon §2103(b)(1).
In other decisions of note in this case, Judge Nealon did sustain demurrers to claims for invasion of privacy/intrusion on seclusion based upon the employee’s contention that her employers discovered the identity of her treating physician from their review of her medical records.
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