Harrisburg Area Cmty. Coll. v. Pa. Human Relations Comm'n, No. 654 C.D. 2019

• Decision Date: 29 October 2020
• Docket Number: No. 654 C.D. 2019
• Citation: 245 A.3d 283
• Parties: HARRISBURG AREA COMMUNITY COLLEGE, Petitioner v. PENNSYLVANIA HUMAN RELATIONS COMMISSION, Respondent
• Court: Pennsylvania Commonwealth Court

245 A.3d 283

HARRISBURG AREA COMMUNITY COLLEGE, Petitioner

v.PENNSYLVANIA HUMAN RELATIONS COMMISSION, Respondent

No. 654 C.D. 2019

Commonwealth Court of Pennsylvania.

Argued May 11, 2020

Decided October 29, 2020

Reargument Denied January 6, 2021

David J. Freedman, Lancaster, for Petitioner.

Kelly M. Matos, Assistant Chief Counsel, Harrisburg, for Respondent.

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE J. ANDREW CROMPTON, Judge

OPINION BY JUDGE McCULLOUGH

Harrisburg Area Community College (HACC) petitions for review from the March 26, 2019 interlocutory order of the Pennsylvania Human Relations Commission (PHRC), which denied HACC's motion to dismiss Holly Swope's (Swope) PHRC complaint for legal insufficiency.¹

Background

HACC operates a nursing program that provides students the opportunity to earn an associate degree and become eligible to take the Pennsylvania State Board of Nursing's registered nurse licensing examination. Once admitted to the program, students must successfully complete a series of nursing courses that feature both class work and clinical training. HACC requires all candidates in the nursing program, on an annual basis, to submit to a urine screening test for the presence of drugs, and if they test positive, they will be removed from the nursing program. (Reproduced Record (R.R.) at 197a.)

On October 25, 2018, Swope filed a discrimination complaint with the PHRC. As alleged in the complaint, Swope has a disability due to suffering from Post-Traumatic Stress Disorder

and Irritable Bowel Syndrome. According to the complaint, Swope is able to complete the essential components of HACC's nursing program as long as she is granted the reasonable accommodation of being permitted to take her legally prescribed medical marijuana medication. (PHRC Complaint ¶¶ 6-8, R.R. at 197a.)

Also according to the complaint, in July 2018, Swope informed Jill Lott (Lott), HACC's Director of Nursing, of her medical condition and requested that she be permitted to use the medical marijuana she had been prescribed by her physician as an accommodation for her disability. Swope alleged in the complaint that Lott informed her that she must comply with HACC's drug policy to continue in the nursing program, as her request would violate HACC's contracts with various clinics. Lott advised Swope that she would be required to undergo a drug test in 90 days. (PHRC Complaint ¶¶ 9-13, R.R. at 197a.) Swope alleged that HACC violated section 4(a)(3) of the Pennsylvania Fair Educational Opportunities Act (PFEOA)² and requested all available and appropriate remedies under the Pennsylvania Human Relations Act (PHRA).³ (PHRC Complaint ¶¶ 14-15, R.R. at 197a-98a.)

On January 18, 2019, HACC filed a motion to dismiss the complaint, arguing that it was legally insufficient because Swope had failed to allege actionable violations of either PHRA or PFEOA. In particular, HACC contended that the definitions of disability in PHRA and PFEOA exclude from coverage current users of controlled substances, that marijuana is considered a controlled substance under federal law and, therefore, that neither PHRA nor PFEOA require accommodation of marijuana use, even if such use is permitted under the Pennsylvania Medical Marijuana Act (MMA).⁴ For similar reasons, HACC also argued that the PHRC lacked subject matter jurisdiction to investigate Swope's allegations. (R.R. at 3a-7a.)

On March 26, 2019, the PHRC issued an interlocutory order denying HACC's motion to dismiss. The PHRC noted that the definition of disability under section 4(p.1)(3) of PHRA, 43 P.S. § 954(p.1)(3), excludes current, illegal users of controlled substances, but argued that under section 303(a) of the MMA, 35 P.S. § 10231.303(a), marijuana is lawful in Pennsylvania if prescribed as medication by a physician. (PHRC Order, March 26, 2019, R.R. at 58a.) The PHRC determined that

so long as the use of the marijuana is consistent with the parameters of the [MMA], the [Pennsylvania] Legislature declares it is not illegal. To be excluded from the coverage of [s]ection 4(p.1)(3) [of PHRA], the use has to be "illegal." Here, it is alleged that [Swope's] use was legal.

(PHRC Order, March 26, 2019, R.R. at 58a.) The PHRC reasoned that Swope's "use of marijuana to mitigate her suffering [made] the present claim viable under the [MMA] in combination with PHRA and PFEOA" and, therefore, denied HACC's motion to dismiss. Id.

Discussion

A. The Parties' Arguments

As stated in our September 11, 2019 order granting HACC's permissive appeal, the sole issue on appeal is whether the anti-discrimination provisions of PHRA and PFEOA require accommodation of Swope's lawful use of medical marijuana under the MMA. HACC argues that both PHRA and PFEOA exclude marijuana users from disability discrimination protections. While HACC acknowledges that PHRA and PFEOA require it to provide reasonable accommodations to qualified disabled students, it contends that individuals who currently and illegally use controlled substances, including marijuana, are exempted from disability definitions under both statutes. HACC maintains that both PHRA and PFEOA incorporate the definition of controlled substances in the federal Controlled Substances Act (Federal CSA),⁵ which defines marijuana as a Schedule I controlled substance, meaning it has no medically acceptable use under federal law. Thus, according to HACC, because marijuana use is considered illegal under the Federal CSA, individuals who use marijuana are excluded from both PHRA's and PFEOA's disability definitions, regardless of whether such use is considered medicinal and/or lawful under Pennsylvania law.

HACC also asserts that although the MMA legalized the use of marijuana for certain medicinal purposes, the MMA did not amend either PHRA's or PFEOA's definitions for illegal use of controlled substances, with both statutes continuing to rely on the federal definition of controlled substances. First, HACC notes that although the MMA explicitly amended The Controlled Substance, Drug, Device and Cosmetic Act (Pennsylvania Drug Act),⁶ the MMA makes no mention of either PHRA or PFEOA. Second, HACC argues that the MMA only prohibits employers from taking adverse actions against employees due to their status as certified users of medical marijuana, but, the MMA's "employment discrimination prohibition mentions nothing about expanding the [PHRC's] jurisdiction to investigate and prosecute employers for failing to accommodate medical marijuana use." (HACC's Br. at 13-14.) Nor does the MMA contain any similar protections for post-secondary students. HACC maintains that an earlier version of the MMA contained protections for students, but that the final enacted version did not contain any such protections. HACC further contends that implied repeals of prior laws are disfavored and that, because the MMA is not irreconcilable with the definitions of illegal drug use under PHRA and PFEOA, we should not imply a repeal of the latter statutes.

Finally, HACC argues that our courts have held that PHRA and the Americans with Disabilities Act (ADA)⁷ should be interpreted co-extensively. HACC observes that PHRA's disability exclusions for illegal drug users mirror those of the ADA and that adopting the PHRC's interpretation of the exclusion would place the two statutes in conflict. However, according to HACC, adopting its preferred interpretation of the PHRC would be consistent with the statutory language of the ADA.

In contrast, the PHRC contends that PHRA and PFEOA only exclude from their disability definitions current, illegal users of controlled substances, which it asserts does not encompass certified users of medical marijuana. The PHRC notes that section 303(a) of the MMA sets forth the general rule that "[n]otwithstanding any provision of law to the contrary, use or possession of medical marijuana as set forth in this act is lawful within this Commonwealth." 35 P.S. § 10231.303(a). Therefore, the PHRC asserts that "so long as the use of marijuana is consistent with the parameters of the MMA, it is not illegal in Pennsylvania" and that "in order not to require an accommodation of the use of medical marijuana, the use of marijuana would have to be illegal." (PHRC's Br. at 10.)

The PHRC further maintains that both section 12(a) of PHRA, 43 P.S. § 962(a), and case law interpreting PHRA mandate that PHRA be construed liberally to accomplish its purpose of safeguarding individuals' right to be free from illegal discrimination. The PHRC contends that under a liberal construction of PHRA, an individual who uses medical marijuana must be accommodated because medical marijuana is legal in Pennsylvania. Additionally, the PHRC asserts that, while PHRA and the ADA have similarities, PHRA is not limited in scope by the ADA and, in many areas, actually provides greater protections than its federal counterpart. Finally, the PHRC asserts that we should afford deference to its interpretation of PHRA because it is the administrative agency tasked with enforcing PHRA.

B. Relevant Statutory Law

As a preliminary matter, 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. In fact, section 2104 of the MMA, while not providing any guidance as to how, where or whether pre-school, primary, or secondary students were permitted to use medical marijuana on school premises, did require the Department of Education to develop regulations pursuant to that section. 35 P.S. § 10231.2104. However, we could find no regulations to date.

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...