A Pennsylvania Appeals Court affirmed an order granting unemployment benefits to a medical marijuana user who was terminated by his employer for a positive drug test.  The Pittsburgh Water and Sewer Auth. v. Unemployment Comp. Bd. of Review, Case No. 228 C.D. 2020 (Commw. Ct. Pa. Nov. 18, 2020).

The employee was employed as a customer service representative for four months.  The Pittsburgh Water and Sewer Authority (“Authority”) maintained a Drug and Alcohol Free Workplace Policy that prohibited the use of illegal drugs on or off duty, including marijuana, and included random drug testing.  The Policy, however, permitted the use of legal drugs that did not affect safety or job performance and defined “legal drug” as “prescription medications. . .that have been legally obtained”.  During the employee’s orientation, Human Resources explained that if an employee was selected for a drug screening, the employee would have an opportunity to verify his or her prescriptions that may impact the drug test results.  If the employee demonstrated the drug was lawfully prescribed, the test results would not be reported to the Authority.

Pursuant to the Policy, the Authority selected the employee for a random drug screening and he tested positive for marijuana.  The employee then submitted a copy of his medical marijuana patient identification card to the Medical Review Officer (“MRO”) who reviewed the positive drug test result.  The MRO forwarded the positive drug test result to the Authority.  The Authority terminated the employee on the grounds that marijuana is illegal under federal law.

The employee’s claim for unemployment benefits initially was denied on the grounds that he violated the Authority’s Drug Policy.  On appeal, however, the Unemployment Compensation Board of Review overturned the denial and determined that the employee was not disqualified for benefits under Section 402(e.1) of Pennsylvania’s Unemployment Compensation Law (relating to discharge for “failure to submit and/or pass a drug test conducted pursuant to an employer’s established substance abuse policy”).  The UCBR held that the employer’s policy stated that an employee’s positive drug test result would be excused if the employee possessed a prescription for lawful medication, and if the employer did not intend for that provision to cover medical marijuana, the policy should have said so.

In affirming the UCBR’s decision, the Court determined that the applicable unemployment compensation laws only require compliance with the employer’s drug policy.  Here, the employer’s policy with regard to the use of medical marijuana was ambiguous.  Because the employee provided the MRO with his valid patient identification card to explain his use of prescribed medical marijuana, the Court could not conclude that the MRO’s reporting of the employee’s drug test as a positive result was in accordance with the Authority’s Drug Policy.  Accordingly, the Court held the UCBR did not err by granting unemployment compensation benefits to the employee.

Employers should review their drug and alcohol policies to address the use of medical marijuana and its impact on drug test results.