Disability Discrimination Claim Based Upon Plaintiff's Use of Medical Marijuana Rejected

  

In the case of Palmiter v. Commonwealth Health System, Inc., No. 20-CV-2544 (C.P. Lacka. Co. Nov. 10, 2020 Nealon, J.), an employment litigation based upon a claim of disability discrimination, the court ruled that, since the Plaintiff’s allegation that she was a patient who was authorized by the state to use medical marijuana for certain medical conditions failed to amount to an allegation that she had a “disability” under the Pennsylvania Human Relations Act, the Plaintiff was found unable to state a claim for employment discrimination in violation of the Act. 

As such, the court sustained the Preliminary Objections asserted by the defense. 

The court found that it was free and clear from any doubt, based upon the fact alleged in the Complaint, that the Plaintiff could not establish the requisite disability under the PHRA. As such, the Complaint was dismissed.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 5, 2021).

UPDATE: Judge Nealon's decision was affirmed on appeal.  The appellate court opinion can be found at Palmiter v. Scranton Quincy Clinic Co., No. 498 MDA 2020 (Pa. Super. Aug. 10, 2021 Dubow, J., Bowes, J., Stevens, P.J.E.) (Op. by Bowes, J.).

In a case of first impression upon appeal, the Pennsylvania Superior Court ruled that an employee fired for their status as a certified medical marijuana user may sue for wrongful termination. The court noted that the Plaintiff could pursue a claim for wrongful discharge under the Medical Marijuana Act after her hospital employer discharged her for a positive drug test.

Anyone wishing to review a copy of this decision may click this LINK.

Interlocutory Appeal Allowed in Case of Alleged Employment Discrimination For Medical Marijuana Use

Tort Talkers may recall the recent Tort Talk post regarding the case of Palmiter v. Commonwealth Health Systems, No. 19-CV-1315 (C.P. Lacka. Co. 2019 Nealon, J.), in which the court addressed the right of an employee to bring an action against her employer under allegations that the employer had improperly terminated the employee for being certified as a medical marijuana user by her treating doctor and discriminating against the employee on that basis.

Under a more recent December 31, 2019 decision in the same case, Judge Terrence R. Nealon, in this matter involving issues of first impression, allowed the Defendants to proceed with an interlocutory appeal.

This more recent decision is notable not only for the issues of first impression but also for the court’s review of the law surrounding the standards by which a trial court will review a request for permission to file an interlocutory appeal on a given issue.

Anyone wishing to review a copy of this decision may click this LINK.

ARTICLE: YEAR-END REVIEW: ANOTHER YEAR OF NOTABLE DECISIONS IN Pa.

This article recently appeared in the January 2, 2020 edition of the Pennsylvania Law Weekly and is reprinted here with permission.  Images have been added here that were not in the original article.

My year-end review article covering the top cases and trends in Auto Law matters is forthcoming.

Year-End Review: Another Year of Notable Decisions in Pa.

By Daniel E. Cummins | January 02, 2020 at 10:24 AM

A number of notable decisions were handed down over the past year by the various courts of Pennsylvania on general civil litigation issues not involving motor vehicle accident matters. Here is a sampling of decisions of note from 2019.

Attorney Work Product Doctrine

In BouSamra v. Excela Health, No. 5 WAP 2015 (Pa. June 18, 2019), the Pennsylvania Supreme Court provided its latest review of the attorney work product doctrine. The court addressed the issue of whether a law firm’s pre-litigation emails sent to a public relations firm served to waive the attorney work product doctrine. 

The Pennsylvania Supreme Court concluded the work product doctrine was not waived by disclosure unless the alleged work product was disclosed to an adversary or disclosed in a manner that significantly increased the likelihood that an adversary or anticipated adversary would obtain it. This matter was remanded back to the trial court for an application of the newly articulated work product waiver analysis.

Premises Liability

Decisions handed down in 2019 served to continue the trend of courts ruling that plaintiffs cannot recover for injuries resulting from slip-and-fall events that occur while it is still snowing. 

In the case of Rosatti v. McKinney Properties, No. 2017-0022 (C.P. Centre Co. Jan. 22, 2019 Grine, J.), the court entered summary judgment in favor of a defendant landowner under the Hills and Ridges Doctrine. 

According to the opinion, the plaintiff slipped and fell while leaving the property while snow and freezing rain was falling.

In reviewing the defendant’s motion for summary judgment, the court in Rosatti cited to Collins v. Philadelphia Suburban Development, 179 A.3d 69, 75 (Pa. Super. 2018), and emphasized that, under the prevailing case law, “a landowner has no obligation to correct the conditions until a reasonable time after the winter storm has ended.” The court additionally noted that “a property owner does not have a duty to clear ice or snow from walkways as soon as it forms or falls. As such, summary judgment was granted.

In the case of Beauford v. Second Nature Landscaping & Construction, No. 20 16-CV-8925 (C.P. Del. Co. Nov. 19, 2018 Green, J.), the court also cited to the Collins case and held that a defendant landowner was not liable for alleged injuries suffered by a plaintiff in a slip and fall event that occurred during an active storm since the defendant had no obligation under Pennsylvania law to correct the conditions until a reasonable time after the storm ended. 

Service of Process

In 2019, there was a plethora of cases that were dismissed due to a plaintiff’s failure to properly or timely complete service of original process.

The latest appellate court review of the application of the Lamp v. Heyman line of cases can be found in Sawyers v. Davis, 2019 Pa. Super. 219 (Pa. Super. Oct. 22, 2019). In Sawyers, the Pennsylvania Superior Court ruled that a trial court erred in dismissing the plaintiff’s personal injury action against a defendant motorist for improper service. 

The central issue in the matter involved the Plaintiff properly serving an out-of-state defendant by way of a certified letter, return receipt requested. According to the opinion, the green return receipt card was lost by the U.S. Post Office. However, the post office did supply tracking documentation that confirmed delivery of the letter. Also produced was a scanned signature of the person who accepted the letter. There was also additional evidence presented that the defendant driver, who was a cousin of the plaintiff, otherwise had notice of the lawsuit.

The appellate court found that the technical defects at issue in this case did not warrant the dismissal of the action, particularly where it was clear that the defendant had notice of the suit and no prejudice was found.

Bad Faith

Over the past year, one recurring bad faith issue reviewed by the federal courts involved the proper pleading of a bad faith claim against an insurance company. The Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog written by Lee Applebaum of the Philadelphia law firm of Fineman, Krekstein & Harris is an excellent resource to find the latest cases on a wide variety of bad faith issues.

One case from 2019 that involved proper pleadings in a bad faith complaint was the case of Rosenthal v. American States Insurance, No. 1:18-cv-01755 2019, M.D. Pa. March 26, 2019 Kane, J.). In Rosenthal, the court dismissed a bad faith count in a UIM case but allowed the plaintiff leave to file an amended complaint. 

Generally speaking, the court in Rosenthal noted that failing to plead descriptions of what a carrier actually did or failed to do, or why they did it, can be fatal to a bad faith claim under the Federal Rules of Civil Procedure. 

Judge Yvette Kane additionally held that identifying the difference between a demand and an offer alone cannot serve as the basis for claim for bad faith, absent allegations that the carrier acted unreasonably and in bad faith by making the lower offer. 

As noted, despite the many faults found with the complaint, as is typical, the court in Rosenthal allowed a second bite at the apple by granting the plaintiff leave to file an amended complaint. Other cases from the past year show that the federal courts are not wont to allow more than two attempts to file a properly pleaded bad faith complaint.

For example, in the case of Moran v. USAA, No. 3:18-cv-2085 (M.D. Pa. Feb. 14, 2019 Caputo, J.), the court had previously dismissed a plaintiff’s bad faith claim without prejudice and leave to amend to correct certain issues with the complaint. However, when challenges were again made to the amended complaint that was filed, the court dismissed the action

In Moran, the court noted that the only additional pleadings added to the original complaint were facts that possibly supported the plaintiff’s evaluation of the claims presented, but no new facts were added to support the allegation that the carrier’s settlement offer was allegedly unreasonable. Nor were any new facts to show how the carrier allegedly knew or recklessness disregarded the fact that its offer was unreasonable. Further leave to amend the Complaint was not granted. 

Fraternities

Last year also gave rise to a number of decisions in cases involving personal injuries at fraternities.

In Rose v. Vilmatelo, No. 2018-SU-450 (C.P. Adams Co. April 12, 2019 George, J.), the court addressed preliminary objections filed by Gettysburg College seeking the dismissal of a plaintiff’s personal injury claim arising out of allegations that the plaintiff, a college student, was injured by an allegedly inebriated participant at a fraternity function on campus. 

The court dismissed the plaintiff’s complaint against the college based upon the case of Alumni Association v. Sullivan, 572 A.2d 1209 (Pa. 1990), in which it was held that college students were no longer minors, but rather adults who were capable of protecting their own self interests. As such, under that case, a college was found not to have any duties in loco parentis with respect to its students. 

A motion to dismiss was also addressed in the federal court case of Piazza v. Young, No. 4:19-CV-00128 (M.D. Pa. Aug. 27, 2019 Brann, J.), which arose out of fatal injuries allegedly sustained by a student at Pennsylvania State University allegedly as a result of hazing activities in a fraternity. The court granted the motions in part and denied the motions in part. 

Of note, with respect to those fraternity brothers defendants who were under the age of 21, the court allowed the claims of the plaintiff to proceed against those underaged defendants under the plaintiff’s theory of recovery to hold the defendants liable for breaching an alleged protective duty that the defendants, as fraternity members, allegedly owed to the plaintiff’s son, a fraternity pledge.

In this regard, Judge Matthew Brann refused to apply the Pennsylvania Supreme Court’s decision in the case of Kapres v. Heller, 640 A.2d 888 (Pa. 1994) in as an expansive manner as requested by those moving defendants who were under the age of 21. Under the Kapres case, the Supreme Court generally ruled that individuals under the age of 21 cannot be held liable under the social host doctrine to a guest or third party injured on the premises relative to the service of alcohol. 

The court in this Piazza case refused to read the Kapres case as immunizing the fraternity defendants in this case from alleged liability for their otherwise allegedly wrongful conduct that involved the provision of alcohol. The court also noted that an expansive reading of the Kapres decision in the context of this case would not serve to further the social utility of the Pennsylvania statutes against hazing activities.

Products Liability

In the case of Davis v. Volkswagen, No. 1405 EDA 2018 (Pa. Super. July 19, 2019), the Pennsylvania Superior Court held that the Lehigh County Court of Common Pleas did not commit any error in a products liability case when it instructed the jury on both the consumer expectation test and the risk-utility test that the Pennsylvania Supreme Court established in the case of Tincher v. Omega-Flex, even though the plaintiff only litigated the case under the consumer expectation test. 

The court in Davis noted that, although the plaintiff argued that the trial court judge should not have instructed the jury on both tests, Pennsylvania law under Tincher allowed jury instructions on both tests where evidence was presented by the defense at trial regarding the same. According to the opinion, the defense put in evidence that, according to the trial court and the appellate court, put the risk-utility test at issue in this crashworthiness case.

Medical Malpractice

Typically, a medical malpractice action is governed by a two-year statute of limitation. However, there may be some cases where a plaintiff does not discover an injury that is allegedly the result of medical negligence within that two-year period. Under the Medical Care Availability and Reduction of Error Act’s (MCARE) statute of repose, medical malpractice actions must be brought within seven years of alleged medical malpractice.

In the case of Yanakos v. UPMC, No. 10 WAP 2018 (Pa. Oct. 31, 2018), the Pennsylvania Supreme Court, in a 4-3 decision, ruled that MCARE’s statute of repose was unconstitutional.

The rationale of the majority opinion in Yanakos striking down the statute of repose under the MCARE Act was that the statute of repose was not substantially related to a governmental interest as was necessary to uphold the statute. The court also found that the statute of repose in the MCARE Act violated the Pennsylvania Constitution’s guarantee of open access to the courts.

Medical Marijuana

With the recent allowance of medical marijuana in Pennsylvania, a number of legal issues can be expected to arise. One area of civil litigation will involve whether a person’s use of medical marijuana can impact her status as an employee at work.

In a case of first impression called Palmiter v. Commonwealth Health Systems, No. 19-CV-1315 (C.P. Lacka. Co. Nov. 22, 2019), Judge Terrence R. Nealon addressed preliminary objections filed by employers in this employment litigation raising the issue of whether 35 P.S. Section 2103(b)(1) of the Medical Marijuana Act (MMA), which states that “no 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 due to the employee’s prescribed use of medical marijuana while not working in her place of employment.

The defendants filed preliminary objections to the complaint and asserted that the Department of Health had the exclusive authority to enforce the MMA’s provisions such that the employee’s sole remedy for her termination was to seek the assessment of a civil penalty by the Department of Health.

After his review of the law, Nealon held that there was nothing the MMA or related regulations that vests the Department of Health, or any other state agency, with the authority to enforce the act against private employers. 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 had violated 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 Section 2103(b)(1).

It remains to be seen how the allowance of the use of medical marijuana will continue to give rise to civil litigation issues going forward.

Looking Ahead

The Supreme Court of Pennsylvania has granted allocatur in the case of Bourgeois v. Snow Time, No. 768 MAL 2018 (Pa. June 25, 2019) involving a snow tubing accident. Notably, the court will address the duties owed by a snow tubing facility (previously established in Tayar v. Camelback), and whether evidence of industry standards is required to sustain a cause of action in recklessness or gross negligence.

Another future decision to watch out for will be the Pennsylvania Superior Court’s decision in the case of Fisher v. Erie Insurance Exchange, No. 1597 WDA 2018, in which the court will address whether documentation in a defense attorney’s file regarding the evaluation of a UM/UIM case is protected from discovery by the attorney-client privilege and the attorney work product doctrine.



Daniel E. Cummins is a partner in the Scranton area law firm of Cummins Law where he focuses his practice in automobile accident, premises liability, and products liability litigation matters.  He also provides mediation services through Cummins Mediation Services.

THE 2019 TORT TALK TOP TEN

Here is the Tenth Annual 2019 Tort Talk Top Ten--an annual listing of notable cases and important trends in Pennsylvania civil litigation law over the past year or so as highlighted in Tort Talk blog posts.

If you wish to view the actual Tort Talk post on any of the following cases or topics, or the actual Opinion, please go to TortTalk.com and type the name of the Plaintiff in the case in the Search Box in the upper right hand corner of the blog.  There should be a Link to the actual Opinion within the blog post itself.


10. Palmiter v. Commonwealth Health Systems, Inc., No. 19-CV-1315 (C.P. Lacka. Co. Nov. 22, 2019 Nealon, J.)

In a case of first impression, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the issue of whether the Medical Marijuana Act creates an implied private cause of action or 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 court recognized such a cause of action and allowed the claim to proceed.


9. Lack of Appellate Guidance on Post-Koken Issues Continues

Despite the passage of well over a decade of time since the Koken decision was handed down in 2005, there is still a continuing trend of a lack of any concrete appellate guidance on any of the many novel issues created by this form of litigation from the pleadings stage to trial. The lack of appellate guidance is due to the fact that most of the cases in this area of law continue to be resolved by one form of ADR or another. The hope remains that those cases that do go up the appellate ladder will result in published decisions by the Superior Court and grantings of allocatur by the Supreme Court.

Here is a quick LINK to the Post-Koken Scorecard on Tort Talk.


8. Yanakos v. UPMC, No. 10 WAP 2018 (Pa. Oct. 31, 2019)


The Pennsylvania Supreme Court, in a 4-3 decision, ruled in favor of the Plaintiff’s argument that MCARE's statute of repose was unconstitutional. The rationale of the majority Opinion in Yanakos striking down the statute of repose under the MCARE Act was that the statute of repose was not substantially related to a governmental interest as was necessary to uphold the statute. The Court also found that the statute of repose in the MCARE Act violated the Pennsylvania Constitution's guarantee of open access to the Courts.


7. Livingston v. Greyhound Lines, Inc., No. 318 EDA 2017 (Pa. Super. April 29, 2019 Colins, J., Lazarus, J., Kunselman, J.) (Op. by Colins, J.)

In April of 2019, the Pennsylvania Superior Court provided its latest pronouncement on the law on the admissibility of intoxication evidence in civil litigation matters. The Court reiterated the rule of law that evidence of alcohol or drug consumption by a person involved in an accident is admissible only where there is sufficient evidence that reasonably shows intoxication and unfitness to engage in the activity at issue at the time of the accident.


6. Moran v. USAA, No. 3:18-cv-2085 (M.D. Pa. Feb. 14, 2019 Caputo, J.)

The court dismissed a Plaintiff’s bad faith claim without prejudice and leave to amend to correct certain issues with the Complaint. This is one of many Federal Court decisions evidencing a continuing trend towards forcing Plaintiffs’ to avoid conclusory allegations in bad faith matters and instead requiring the pleading of specific acts of alleged bad faith.  There were also a number of decisions handed down over the past year that confirmed that the extension of an alleged low ball offer followed by a settlement or an award of a much higher number does not necessarily equate to bad faith -- click HERE to view those Bad Faith - Low Ball Offer cases.


5. Sawyers v. Davis, 2019 Pa. Super. 219 (Pa. Super. Oct. 22, 2019 Bowes, J., Olson, J., Stabile, J.) (Op. by Bowes, J.) (Olson, J, dissenting)

The Pennsylvania Superior Court ruled that a trial court erred in dismissing the Plaintiff’s personal injury action against a defendant motorist for improper service.  Over the past year, a number of decisions have been handed down at both the trial court and appellate level analyzing the application of the Lamp v. Heyman line of cases and their progeny.  Click HERE to view a compilation of those cases.


4. Davis v. Volkswagen, No. 1405 EDA 2018 (Pa. Super. July 19, 2019 Bowes, J., McLaughlin, J., Stabile, J.) (Op. by McLaughlin, J.)(Stabile, J., Concurring)

The Pennsylvania Superior Court held that the Lehigh County Court of Common Pleas did not commit any error in a products liability case when it instructed the jury on both the consumer expectation test and the risk-utility test that the Pennsylvania Supreme Court established in the case of Tincher v. Omega-Flex.  The Superior Court ruled in this fashion even though the Plaintiff only litigated the case under the consumer expectation test. The Court found that, where the defense presented evidence that also implicated the risk-utility test, a jury instruction was warranted in that regard as well.


3. Farese v. Robinson, 2019 Pa. Super. 336 (Pa. Super. Nov. 8, 2019 Lazarus, J., Kunselman, J., Colins, J.)   (Dissenting Op. by Lazarus, J.).

In Farese, the Pennsylvania Superior Court held, in what appears to be the first appellate decision of its kind, that future medical expenses need not be reduced in accordance with Act 6 before being presented to the jury at trial in an auto accident case. This decision did not impact the rule that past medical expenses incurred in motor vehicle accident cases have to be reduced before being presented to a jury.


2. BouSamra v. Excela Health, No. 5 WAP 2015 (Pa. June 18, 2019)

The Pennsylvania Supreme Court offered its latest pronouncement on attorney work product issues in June of 2019. The Court addressed the issue of whether a law firm’s sending of pre-litigation emails to a public relations firm served to waive the attorney work-product doctrine, and whether a third party must provide legal advice, or be acting under the control of an attorney or the client, in order to qualify as a privileged person under the doctrine. The Pennsylvania Supreme Court concluded the work product doctrine was not waived by disclosure unless the alleged work product was disclosed to an adversary or disclosed in a manner which significantly increased the likelihood that an adversary or anticipated adversary would obtain it.

1. Gallagher v. GEICO, 201 A.3d 131 (Pa. Jan. 23, 2019)

The Pennsylvania Supreme Court held that the Household Exclusion contained in a Geico policy violated the MVFRL was invalid because it served as a “de facto waiver” of stacked coverage. The Court suggested that its decision in Gallagher not only applied to that case, but should also be read to eradicate the Household Exclusion across the board.  While a number of subsequent Federal Court decisions served to expand the scope of the Gallagher decision, at least one more recent trial court decision (Nationwide v. Ryman) has suggested that the Gallagher decision should be limited to its facts.

Quoted in Nationally Published Article in Business Insurance Magazine on Civil Litigation Medical Marijuana Issue

Was quoted in this article in the nationally published Business Insurance magazine regarding the write-up on Judge Terrence R. Nealon's decision in the case of Palmiter v. Commonwealth Health Systems regarding the validity of a Plaintiff's employment discrimination lawsuit after she was fired for testing positive for marijuana use even though she advised the employer that she was an authorized user of medical marijuana:


Medical Marijuana Trend Means Growing Discrimination Exposures

by

Judy Greenwald

December 10, 2019


A growing number of workers and job applicants are successfully suing businesses for discrimination after they terminate or fail to hire them because of their medical marijuana use, experts say.

The trend is expected to accelerate with 33 states and the District of Columbia to date having legalized medical marijuana’s use, these experts say.

Recent cases include a Nov. 22 ruling by the Court of Common Pleas of Lackawanna County in Scranton, Pennsylvania, which became the first state or federal court in Pennsylvania to rule on the issue.

Complicating the situation for employers, meanwhile, is the fact that marijuana remains an illegal drug under federal law and various state laws create a patchwork quilt of legislation for them to follow.

Experts recommend that employers make an effort to engage in an interactive process with workers in states where medical marijuana has been legalized.

In the Pennsylvania case, the Court of Common Pleas held in Pamela Palmiter v. Commonwealth Health Systems Inc. at al. that although the state’s Medical Marijuana Act, which became effective in 2016, does not explicitly permit a private right of action by an employee who is allegedly discriminated against because of medical marijuana use, it does so implicitly.

“It opens the door to other lawsuits” and will be influential both inside the state and elsewhere, said Daniel E. Cummins, a partner with [Cummins Law] in Scranton that represents clients in civil litigation.

Observers point to comparable rulings in federal and state courts including in Arizona, Connecticut, Delaware, Massachusetts, New Jersey and Rhode Island.

Frederick T. Smith, a labor and employment attorney with Seyfarth Shaw LLP in Charlotte, North Carolina, said that of the 33 states that have legalized medical marijuana use, 16 provide workspace protections, either through their statutes or through case law interpreting their statutes, with the remaining either silent or ambiguous on the issue.

The 16 states are Arkansas, Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island, West Virginia and Massachusetts.

Mr. Smith said that while courts initially tended to rule employees could not pursue discrimination charges in medical marijuana cases, “the tide started to turn in 2017, with decisions coming from courts in the Northeast that changed the risk analysis for the business community when it comes to applicants’ and employees’ use of marijuana.”

“There’s an increasing trend across all states to protect the medical use of marijuana and to treat it similarly to how prescription drugs are treated,” said Matthew A. Hesketh, a member of Sherman & Howard LLC in Phoenix, whose practice focuses on contractual disputes, corporate and business matters, administrative law and appellate litigation.

“If an employee would be entitled to use prescription drugs in compliance with the law, the trend is courts are willing to treat marijuana in the same way, assuming it has some recognized protection under state law,” he said.

“There are two primary avenues for recognizing protection of medical marijuana,” Mr. Hesketh said. “The first is through an antidiscrimination type of law, so generally, if medical marijuana can be viewed as a reasonable accommodation for someone’s disability, some states are willing to recognize that under their own state laws (that are) analogous to the (Americans With Disabilities Act), that the medical use of marijuana is potentially a reasonable accommodation,” although they cannot use it on the job site, he said.

The other source of protection is instances such as Arizona’s, where the law protects employers from taking any adverse action against an employee who is a registered medical marijuana cardholder as long as he does not come to work impaired.

“There’s going to be a movement” of litigation in this area, said Vance O. Knapp, a partner with Armstrong Teasdale LLP in Denver in management-side labor and employment law .

“The first step was to get it legalized,” he said. Now that its proponents have been successful, the next movement will be to provide protection for employees.

If workers have a medical marijuana card “the really smartest move to make” is to engage with them in an interactive process “and see if they have an underlying disability which requires accommodation,” said Amy Epstein Gluck, a partner with FisherBroyles LLP in Washington who advises business owners on compliance with anti-discrimination laws.

Mr. Smith said employers “should be reexamining their policies and practices and their tolerance for risk” in the 16 states that provide discrimination protection.

“Many companies are developing reasonable accommodation processes in order to determine whether applicants’ and employees’ use of medical marijuana doesn’t impact their ability to safely and effectively perform their jobs in the case of employees, and the jobs to which they are applying in the case of applicants,” he said.

Linda B. Hollinshead, a partner with Duane Morris LLP in Philadelphia, who provides training and counseling to employers, said she recommends employers look at the situation from the perspective of two points in time: at the prehiring, post-drug testing stage, and situations where the employee is already working at the company, where the issue most often arises post-accident and there is a reasonable suspicion of drug use.

In cases where the applicant has not yet been hired, employers should “carefully consider what kinds of positions they really want to be testing for,” and distinguish between safety-sensitive and nonsafety-sensitive positions, she said.

“I have many clients who have decided to not test for marijuana,” at least at the pre-hire stage, for nonsafety-sensitive positions, she added.

Employers who do conduct drug testing should work with their medical review officers and drug testing companies, and set up protocols that provide an expert’s independent judgment on the issue if the candidate tests positive, she said.

The employer should then engage in an interactive process with the applicant to determine if they can safely perform in the position for which they are being considered.

In cases where someone is already working at the company, employers “have to distinguish between safety-sensitive and nonsafety-sensitive” positions, but in states where medical marijuana has been legalized, the employer should not make a decision a worker should not be employed simply because they use medical marijuana, she said.

Experts recommend employers stay on top of local laws in this matter.

“Obviously this is an area of law that’s evolving rapidly,” said Mr. Hesketh. It is a lot to keep track of, he added, with new court cases, legislation and proposed legislation “almost every single day,” he said.

“The best advice I can give is to keep it on your radar” and be cognizant that “this is changing quickly. This isn’t something where you can just rely on old policies or handbooks or what may have been OK” even a year ago.

“It comes down to corporate culture and management decisions from one company to the next,” said Marshall Gilinsky, a shareholder with Anderson Kill P.C. in New York with practices in the firm’s insurance recovery and commercial litigation departments.

“You can see how there are reasons why, say, a trucking company might have a different policy compared to an advertising agency. But either way, it seems that when it comes to medical marijuana, the idea that someone can be fired because of the medicine that they’re taking doesn’t seem to be fair or make sense,” Mr. Gilinsky said.

“Obviously, if you have an employee who’s operating heavy equipment, it’s clear they can’t be intoxicated while on the job, but most medical marijuana products do not have intoxicating or hallucinatory effects.”

Federal action is also possible, said Paula A. Barran, founding partner at Barran Liebman LLP in Portland, Oregon, who represents management. “At some point, I think the patchwork quilt is going to force Congress to change where it’s headed,” she said.

Another factor to consider, she said, are remaining questions as to marijuana’s safety. “The products haven’t been studied for safety or purity or long-term effect,” she said.