HACC nursing student who uses medical marijuana can’t avoid drug test she is sure to fail: Pa. court

A registered nursing student at Harrisburg Area Community College was caught in a marijuana-induced conundrum.

She could either stop taking her medical marijuana in order to pass a mandatory drug test, or she could keep taking the drug, fail and be booted out of school.

When HACC officials wouldn’t budge on her request for a pass, the student filed a discrimination complaint with the Pennsylvania Human Relations Commission.

On Thursday, a Commonwealth Court panel in a precedential decision sided with HACC and ordered that the woman’s complaint be dismissed.

It also urged the state Legislature to take another look at the law legalizing governing medical marijuana use and the collateral consequences of that edict.

As explained in an opinion by Judge Patricia A. McCullough, the case came to Commonwealth Court when HACC officials appealed the human relations commission’s refusal to void the student’s complaint.

HACC nursing students must submit to annual urine testing for drug screening. If they fail the test they are ousted from the nursing program, McCullough noted.

The student claimed the medical issues for which she was prescribed medical marijuana constitute a disability that should exempt her from the drug testing mandate.

The problem, McCullough found, is that when the Legislature passed the Medical Marijuana Act, it didn’t amend the Pennsylvania Human Relations Act and the Pennsylvania Fair Education Opportunities Act to mandate that accommodations be made for those who are prescribed medical marijuana. Plus, marijuana of all types remains illegal under federal law.

“We note that among the number of provisions in the MMA, most apply to the licensing and regulation of growers, manufacturers, researchers, and dispensaries. Minimal attention is given to employees, and even less is given to students,” the judge wrote. The MMA says nothing about how it is or is not to be applied to students continuing their educations after high school, McCullough noted.

“Moreover, the MMA provides that it is ‘the intention of the General Assembly that any Commonwealth-based program to provide access to medical marijuana serve as a temporary measure, pending federal approval of and access to medical marijuana through traditional medical and pharmaceutical avenues’,” she added.

The medical marijuana law does allow the punishment of medical marijuiana users who pose a public health or safety risk while under the influence of the drug, McCullough noted. “This provision would clearly apply to intensive care unit nurses or other nurses who are under the influence of medical marijuana while on the job or in training,” she wrote.

If the medical marijuana law or other statutes need to be changed to address the issue posed by the HACC student’s complaint, the Legislature, not the courts, has the power to do so, McCullough found.

Judge Anne E. Covey wrote a concurring opinion urging legislators address the issue ASAP.

“The conflict among these statutes has created an absurd result in requiring Pennsylvania citizens to choose the benefits of medical marijuana or the protections of the PHRA and the PFEOA,” she wrote.

“This quagmire for individuals whose physicians have prescribed medical marijuana for their use as authorized by the MMA, but who are then precluded from using the same because of the risk to their employment and education since such use is still illegal under the PHRA and the PFEOA, and other Pennsylvania law, is an untenable position,” Covey said.

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