May a general contractor rescind an offer of employment to a project engineer on the basis that the prospective employee used medical marijuana? A Federal Judge recently held that the prospective employee could proceed with his claims of discriminatory hiring practices under Pennsylvania state law.

In Davis v. The Albert M. Higley Company, LLC, Albert M. Higley Company (AMHC), a construction general contractor, offered Brian Davis employment as a project engineer. The employment offer was contingent upon a pre-employment drug test. According to Davis’s lawsuit, Davis was diagnosed with anxiety, depression, and ADHD, and is certified to use medical marijuana to treat these conditions. Davis alleges that he notified AMHC of his status as a medical marijuana cardholder during the interview process.

Upon receiving the results of the drug test, AMHC requested that Davis submit a letter from his medical provider for information regarding his medical marijuana prescription. Davis’s medical provider would not or could not provide the requested information. However, Davis offered to sign an agreement to not use medical marijuana or be under the influence during working hours. AMHC did not respond to Davis’s proposal, instead formally rescinding the employment offer, stating: “After careful consideration, this decision was made due to your drug screen and reported levels considered unsafe in our work environment per Pennsylvania law.”

Davis filed suit against AHMC alleging wrongful failure to hire in violation of Pennsylvania’s Medical Marijuana Act (MMA) and failure to accommodate in violation of Pennsylvania’s Human Resources Act (PHRA). AMHC filed a motion to dismiss each of the claims. The Court’s opinion relates to AMHC’s motion to dismiss.

Davis argued that, but for his status as a medical marijuana cardholder, AMHC would have hired him. AMHC argued that Davis’s employment offer was rescinded for other legitimate and non-discriminatory reasons (e.g. a positive drug test and failure to provide information about the medical marijuana prescription).

Under Section 2103(b)(1) of Pennsylvania’s Medical Marijuana Act,  “no employer may discharge, threaten, refuse to hire, or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.”

AMHC argued that the MMA protects employees from adverse action only where action is predicated solelyupon the basis of the employee’s cardholder status, and that Davis’s pleadings made clear that Davis’s employment offer was rescinded for other reasons. However, the Court found that AMHC’s proffered basis for rescission was connected to Davis’s cardholder status. Further, the Court noted that AMHC’s argument, if adopted, would permit adverse action based only upon a positive test for legal marijuana use and that the MMA would be ineffectual if it protected an employee’s ability to possess a medical marijuana card, but not use medical marijuana. The Court found that Davis sufficiently pleaded that his status as a medical marijuana cardholder was the basis for AMHC’s recission of the employment offer, and denied AMHC’s motion to dismiss Davis’s MMA claim.

Davis also argued that AMHC failed to make reasonable accommodation for Davis’s disabilities and the PHRA. AMHC argued that Davis’s disability was marijuana use, and that Davis is not entitled to an accommodation for marijuana use under the Act. Citing earlier precedent, the Court held that that the anti-discriminatory provisions of the PHRA do not require accommodation of an individual’s lawful use of medical marijuana, dismissing Plaintiff’s PHRA claim with prejudice.

Many states, including Texas, allow for use of medical marijuana. Under the Texas Compassionate Use Program (CUP), Chapter 169 of the Texas Occupations Code, qualified and registered physicians may prescribe low-THC cannabis to Texas residents with one or more conditions identified in the statute, including but not limited to epilepsy, seizure disorders, autism, cancer or PTSD. The CUP defines low-THC cannabis as cannabis with less than1% THC.

Screening prospective employees has been and continues to be complex. Aside from making certain that a person is qualified to handle the responsibilities of the job, employers must also take into account numerous federal and state statutes that prevent discriminatory hiring and firing practices. With the increased mobility of the American workforce, particularly in the construction trades, employers must also contend with prospective employees’ understanding or misunderstanding of applicable rights and the increasing tolerance of both recreational and medical use of marijuana.

The attorneys in our Austin and Dallas office routinely advise on employment matters. If you should have any questions, please contact us at info@gstexlaw.com.

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