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Employee granted Unemployment Benefits after dismissal for Medical Marijuana Use

February 10, 2021

By Shelley W. Elovitz, Esquire

In Pittsburgh Water and Sewer Authority, Petitioner v. Unemployment Compensation Board of Review (UCBR), the Court found that the UCBR did not err in granting unemployment compensation to a worker with a medical marijuana card.

Under 43 Pa. Stat. Ann. § 802(e.1) of the Unemployment Compensation Law, if an employer has an established substance abuse policy and the employee violates that policy by either failure to submit and/or pass a drug test, then the employee can be ineligible for unemployment compensation. However, if the employer meets this initial burden, the employee has the opportunity to demonstrate that the employer’s substance abuse policy is in violation of the law or a Collective Bargaining Agreement.

Under the protocol for this employer, employees can be selected at random for drug screening. Should a substance be found, the medical review officer (MRO) would contact the employee to inquire about medical prescriptions that may affect the drug test results, and the employee would have three days to verify his/her prescriptions. If a valid prescription was presented, the results would not be forwarded to the employer. In this case, the employee produced his medical marijuana card but the MRO still forwarded the test results, which lead to the employee’s dismissal because marijuana is classified as an illegal substance under federal law. The employee applied for Unemployment Compensation and was denied before winning an appeal before the UCBR.

The Court agreed with the UCBR that the employee was eligible for unemployment compensation based on two issues. First, the Claimant was unaware that he would be dismissed for using medical marijuana, since it was lawfully prescribed. Therefore, the employee did not intend to violate the policy. Secondly, the Employer fully admitted that it excuses positive drug test results when employees furnish the MRO a prescription, which the employee did. The UCBR insists that federal law has no relevance or connection to Claimant’s job, and disqualifying Claimant from UC benefits when Claimant acted pursuant to a lawful prescription would be absurd.

What does this mean? These types of cases were anticipated when Pennsylvania legalized the use of Medical Marijuana, which is still illegal under federal law. When state and federal law are at odds, court rulings are essential to interpreting the law. Because the employee provided the medical review officer (MRO) with his valid patient identification card to explain his use of prescribed medical marijuana, it could not be concluded that the MRO’s reporting of the employee’s drug test as positive was in accordance with the employer’s substance abuse policy. Note that Drivers with a CDL can’t test positive for marijuana even with a medical marijuana card.

If you have questions about unemployment compensation, contact us online or call (412) 338-1100.

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