The plaintiff, John DellaVecchio, interviewed for a position as an Associate Engineer with Cleveland Cliffs Steel, LLC in April 2022. DellaVecchio was offered and accepted the job. As part of the post-offer, pre-employment process, the plaintiff was required to submit to a drug test. DellaVecchio disclosed to Cleveland Cliffs that he used medical marijuana and had been certified by a prescribing physician in February 2021 to do so.

At the drug screen appointment (June 7, 2022), DellaVecchio informed the testing nurse that his medical marijuana card was expired but that his prescription was valid. He then requested that the appointment be rescheduled so that he could secure an updated card from his physician the next day. The nurse replied that he would have no issues as long as he was in possession of an updated card at the time he received the drug test results. As such, the plaintiff proceeded with the appointment and the next day (June 8, 2022), DellaVecchio's physician "certified the Plaintiff's continued prescription [for] use of medical marijuana, noting that Plaintiff's online certification would be updated immediately, and he would be receiving an updated medical marijuana card in the mail." The plaintiff subsequently sent his updated certification to Cleveland Cliffs.

One week later, the offer was rescinded by Cleveland Cliffs, citing the positive drug test as the reason. When DellaVecchio contested the decision based on his possession of a medical marijuana card, the representative from Cleveland Cliffs responded that it "did not matter" because this was the defendant's policy. DellaVecchio subsequently filed suit against Cleveland Cliffs for allegedly violating the Pennsylvania Medical Marijuana Act (PMMA) which provides that "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."

Cleveland Cliffs countered DellaVecchio's point by arguing that he was not a member of the PMMA protected class as a result of the expired card and therefore, he was not a certified medical marijuana user under the PMMA. The court was not persuaded by this argument based on the following points:

• the plaintiff possessed a valid card when the adverse employment action was taken;
• the plaintiff sent the employer his updated certification prior to the employer receiving the positive result;
• the response of the employer's representative to DellaVecchio when the offer was initially revoked that his card status "did not matter."

Based on the aforementioned, the court ultimately determined that DellaVecchio had been discriminated against based on his status as a medical marijuana cardholder. The court also found a private action could be brought against Cleveland Cliffs by the plaintiff under the PMMA. The court furthermore denied the defendant's motion to dismiss.

Employers are encouraged to carefully review the terms of the PMMA, specifically as it relates to timelines involving expired cards and the adverse action process. Employers are further encouraged to incorporate this understanding and analysis of the PMMA into specific steps and workflows involved in the hiring process.

Posted: June 24, 2023

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