Harrisburg Area Community College v. Pennsylvania Human Relations Commission

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Harrisburg Area Community College, :
Petitioner :
: No. 654 C.D. 2019
v. :
: Argued: May 11, 2020
Pennsylvania Human Relations :
Commission, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION BY
JUDGE McCULLOUGH FILED: October 29, 2020
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
1
After the PHRC issued its interlocutory order, HACC sought permission to appeal to this
Court, pursuant to section 702(b) of the Pennsylvania Judicial Code, 42 Pa.C.S. §702(b), and Rule
1311 of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1311. On September 11, 2019,
we granted HACC’s petition for permission to appeal the PHRC’s interlocutory order. Thereafter,
HACC filed an application to amend the PHRC’s order to authorize immediate appellate review in
accordance with section 702(b) of the Judicial Code, 42 Pa.C.S. §702(b). Although the PHRC granted
HACC’s application in a supplemental order issued on May 7, 2019, as we concluded in our
September 11, 2019 order granting HACC’s permissive appeal, because the PHRC issued the
supplemental order more than 30 days after the application had been filed, the application was deemed
denied pursuant to Rule 1311(b) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P.
1311(b). “Where the administrative agency . . . refuses to amend its order to include the prescribed
statement, a petition for review under Chapter 15 of the unappealable order of denial is the proper
(Footnote continued on next page…)
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
mode of determining whether the case is so egregious as to justify prerogative appellate correction of
the exercise of discretion by the lower tribunal.” Pa.R.A.P. 1311, Note. Subsequent to the filing of
the petition for permission to appeal, Rule 1311 of the Pennsylvania Rules of Appellate Procedure
was amended to provide that a permissive appeal may only be sought by petition for permission to
appeal and not by a petition for review under the Note to Rule 1311.
2
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.
2
Act of July 17, 1961, P.L. 776, as amended, 24 P.S. §5004(a)(3). Section 4(a)(3) of the
PFEOA provides that “it shall be an unfair educational practice for an educational institution . . . [t]o
expel, suspend, punish, deny facilities or otherwise discriminate against any students because of race,
religion, color, ancestry, national origin, sex, handicap or disability.” Id. The PHRC is vested with
the authority to administer the PFEOA. Section 5 of the PFEOA, 24 P.S. §5005.
3
Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§951-963.
4
Act of April 17, 2016, P.L. 84, 35 P.S. §§10231.101-10231.2110.
3
§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
5
21 U.S.C. §§801-971.
4
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
6
Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§780-101 to 780-144.
7
42 U.S.C. §§12101-12213.
5
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
6
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 pharmaceutical avenues.”
Section 102(4) of the MMA, 35 P.S. §10231.102(4) (emphasis added).
We now look at the applicable statutes in this case. Under section 5(i)(1)
of PHRA, it is an unlawful discriminatory practice for any owner, lessee, proprietor,
manager, superintendent, agent, or employee of any public accommodation to
“[r]efuse, withhold from, or deny to any person because of his . . . handicap or disability
. . . any of the accommodations, advantages, facilities or privileges of such public
accommodation.” 43 P.S. §955(i)(1). Pursuant to section 4(a)(3) of PFEOA, it is an
“unfair educational practice for an educational institution . . . [t]o expel, suspend,
punish, deny facilities or otherwise discriminate against any student because of . . .
handicap or disability.” 24 P.S. §5004(a)(3). The definition of “public
accommodation” under PHRA includes, inter alia, “primary and secondary schools,
high schools, academies, colleges and universities, extension courses and all
educational institutions under the supervision of this Commonwealth.” Section 4(l) of
PHRA, 43 P.S. §954(l). Under the PHRC’s regulations,
[i]f a handicapped or disabled person, with reasonable
accommodation, meets the essential eligibility requirements
for and is similarly situated with able-bodied persons in
terms of need and desire to use, enjoy or benefit from a public
accommodation, then reasonable accommodations shall be
7
made to assure the person opportunity substantially
equivalent to that of able-bodied persons to use, enjoy and
benefit from the public accommodation in an integrated
setting.
16 Pa. Code §44.21.
The PHRA defines “‘handicap or disability,’ with respect to a person,”
as follows:
(1) a physical or mental impairment which substantially
limits one or more of such person’s major life activities;
(2) a record of having such an impairment; or
(3) being regarded as having such an impairment, but such
term does not include current, illegal use of or addiction
to a controlled substance, as defined in section 102 of the
[Federal CSA] (Public Law 91-513, 21 U.S.C. §802).
Section 4(p.1) of PHRA, 43 P.S. §954(p.1) (second emphasis added). The definition
of “handicap or disability” in PFEOA is nearly identical to that in PHRA, providing
the following:
“Handicap or disability,” with respect to a person, means—
(i) a physical or mental impairment which substantially limits
one or more of the person’s major life activities;
(ii) a record of having such an impairment; or
(iii) being regarded as having such an impairment, but does
not include current, illegal use of or addiction to a
controlled substance, as defined in section 102 of the
[Federal CSA] (Public Law 91-513, [21 U.S.C. §802]).
Section 3(7) of PFEOA, 24 P.S. §5003(7) (second emphasis added).
The Federal CSA defines a “controlled substance” as a “drug or other
substance . . . included in schedule I, II, III, IV, or V of part B” of the Federal CSA.
8
Section 102(6) of the Federal CSA, 21 U.S.C. §802(6). By the statute’s own terms,
marijuana is listed as a Schedule I controlled substance, section 202(c) of the
Federal CSA, 21 U.S.C. §812(c), and the Federal CSA states that a Schedule I
controlled substance is delineated as such when
(A) The drug or other substance has a high potential for
abuse;
(B) The drug or other substance has no currently
accepted medical use in treatment in the United States;
[and]
(C) There is a lack of accepted safety for use of the drug or
other substance under medical supervision.
Section 202(b)(1) of the Federal CSA, 21 U.S.C. §812(b)(1) (emphasis added).
The Federal CSA is expressly referenced in PHRA and PFEOA, and both
statutes incorporate its provisions and prohibitions. The Federal CSA expressly
includes marijuana on the list of drugs which are described as having no accepted
medical use. In other words, Schedule I drugs are scheduled as such because Congress
has determined that the drug has (1) a high potential for abuse, (2) no currently
accepted medical use, and (3) a lack of accepted safety for the use of the drug under
medical supervision. See Gonzales v. Raich, 545 U.S. 1, 14 (2005) (citing 21 U.S.C.
§812(b)(1)) (“Schedule I drugs are categorized as such because of their high potential
for abuse, lack of any accepted medical use, and absence of any accepted safety for use
in medically supervised treatment.”)).
Significantly, Congress also has delineated those controlled substances
which it does recognize as having a currently accepted medical use in the United States.
These are listed in Schedules II-V. Marijuana is not listed in Schedules II-V. In other
words, Congress has determined that not only is marijuana listed as a prohibited
Schedule I drug, it also chose not to include it on the list of those substances that it
recognizes as having any accepted medical use.
9
Turning to Pennsylvania law, section 303(a) of the MMA provides
generally that the use or possession of medical marijuana is lawful and states that
“[n]otwithstanding any provision of law to the contrary, use or possession of
medical marijuana as set forth in [the MMA] is lawful within this
Commonwealth.” 35 P.S. §10231.303(a) (emphasis added). Section 2101 of the
MMA provides that the “possession and consumption of medical marijuana permitted
under [the MMA] shall not be deemed to be a violation of the [Pennsylvania Drug Act].
If a provision of the [Pennsylvania Drug Act] relating to marijuana conflicts with a
provision of [the MMA], this act shall take precedence.” 35 P.S. §10231.2101.
However, section 304(a) of the MMA also provides an exclusion rendering the use of
medical marijuana unlawful as follows: “[e]xcept as provided in section 303, section
704, Chapter 19 or Chapter 20 [of the MMA], the use of medical marijuana is
unlawful and shall, in addition to any other penalty provided by law, be deemed a
violation of the [Pennsylvania Drug Act].” 35 P.S. §10231.304(a) (emphasis added).
As noted above, the MMA provides that employees cannot be
discriminated against due to their status as certified users of medical marijuana, but
does not require that an employer provide an accommodation therefor. Moreover,
the MMA does not limit the employer’s right to discipline an employee for being under
the influence of medical marijuana in the workplace or for conduct falling below
standards of normal care while under the influence of medical marijuana. Section
2103(b) of the MMA, provides, in full:
(b) Employment.--
(1) 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.
10
(2) Nothing in this act shall require an employer to make
any accommodation of the use of medical marijuana on
the property or premises of any place of employment. This
act shall in no way limit an employer’s ability to discipline
an employee for being under the influence of medical
marijuana in the workplace or for working while under the
influence of medical marijuana when the employee’s
conduct falls below the standard of care normally
accepted for that position.
(3) Nothing in this act shall require an employer to commit
any act that would put the employer or any person acting on
its behalf in violation of Federal law.
35 P.S. §10231.2103(b) (emphasis added). Thus, while an employer cannot
discriminate on the basis of an employee’s status as a certified medical marijuana user,
35 P.S. §10231.2103(b)(1), an employer is not required “to make any
accommodation for the use of medical marijuana on [its] property or [the]
premises of any place of employment,” 35 P.S. §10231.2103(b)(2), or commit any
act that would put itself, or any one acting on its behalf, in violation of federal law.
35 P.S. §10231.2103(b)(3) (emphasis added).
While there is a limited general provision in the MMA prohibiting
discrimination against an employee due to his or her status as a certified user, there is
no similar mention in the MMA regarding post-secondary students. The MMA only
references the use of medical marijuana by pre-school, primary, and secondary students
under section 2104 of the MMA to note that the Department of Education is to
promulgate regulations therefor. Section 2104 of the MMA provides, in full, as
follows:
The Department of Education shall promulgate regulations
within 18 months of the effective date of this section
regarding the following:
11
(1) Possession and use of medical marijuana by a
student on the grounds of a preschool, primary
school and a secondary school.
(2) Possession and use of medical marijuana by an
employee of a preschool, primary school and a
secondary school on the grounds of such school.
35 P.S. §10231.2104 (emphasis added). As can be seen by the above, section 2104 of
the MMA only references pre-school, primary, and secondary students, but it does
not contain a statement as to whether or not the use of medical marijuana is
permitted by these students. Instead, the MMA required the Department of
Education to promulgate regulations with respect to these students. As noted, our
research did not uncover any regulations which cite to 35 P.S. §10231.2104 or
explicitly address the treatment of medical marijuana on school premises. Moreover,
there is absolutely no reference to post-secondary students in the MMA whatsoever.
Swope is a post-secondary student. While the legislature could have included language
relating to post-secondary students in the MMA, it chose not to do so.
C. Analysis
We now assess whether HACC was required to provide a reasonable
accommodation for Swope’s medical marijuana use. To determine whether the
language in PHRA and PFEOA is overridden by the MMA, so as to require an
exemption, we apply laws of statutory construction.
The purpose of statutory interpretation is to ascertain the
General Assembly’s intent and give it effect. 1 Pa.C.S.
§1921(a). In discerning that intent, the court first resorts to
the language of the statute itself. If the language of the
statute clearly and unambiguously sets forth the legislative
intent, it is the duty of the court to apply that intent to the
case at hand and not look beyond the statutory language to
ascertain its meaning. See 1 Pa.C.S. §1921(b) (“When the
words of a statute are clear and free from all ambiguity, the
12
letter of it is not to be disregarded under the pretext of
pursuing its spirit.”).
Mohamed v. Department of Transportation, Bureau of Motor Vehicles, 40 A.3d 1186,
1193 (Pa. 2012).
i. The Use of Medical Marijuana under the MMA
The PHRC’s argument that the legalization of medical marijuana in
Pennsylvania via the MMA requires an accommodation for the use of medical
marijuana under section 5(i)(1) of PHRA and section 4(a)(3) of PFEOA is unpersuasive
for two reasons.8 First, even as to employers/employees, which is not the case at hand,
8
Initially, we address HACC’s central contention that PHRA and PFEOA categorically
preclude an individual who uses a controlled substance from having a “handicap or disability.”
(HACC’s Br. at 9 (“[B]oth statutes explicitly exempt from their definitions of the term ‘disability’
any individual who is engaged in the ‘current, illegal use of . . . a controlled substance . . . .’”)
(emphasis added)). However, the question as phrased by this Court in our September 11, 2019 order
was as follows:
Whether the anti-discrimination provisions under Section 5(i)(1) of the
[PHRA], as amended, 43 P.S. §955(i)(1) (prohibiting places of public
accommodation from unlawfully discriminating against an individual
because of a “disability”), and Section 4(a)(3) of the [PFEOA], as
amended, 24 P.S. §5004(a)(3) (prohibiting institutions of higher learning
from discriminating against “any student because of . . . [a] disability”),
require accommodation of [Swope’s] lawful use of medical
marijuana under [the MMA], in light of federal law prescribing that
the use of marijuana is illegal.
(09/11/19 Order) (emphasis added). HACC’s statement of the issue conflates the question before us.
The question is not whether Swope has a disability, it is clear that she does, Post-Traumatic Stress
Disorder and Irritable Bowel Syndrome. The question is whether HACC must accommodate the
disability by allowing the use of medical marijuana. The operative language defines the term
“handicap or disability,” and specifies that the defined term “does not include current, illegal use of
or addiction to a controlled substance,” as defined by the Federal CSA. Section 4(p.1) of PHRA, 43
P.S. §954(p.1); Section 3(7) of the PFEOA, 24 P.S. §5003(7). Through this caveat, the General
Assembly specified that the use of or addiction to a controlled substance does not constitute a
handicap or disability, even if such use or addiction otherwise would fall within the definition.
(Footnote continued on next page…)
13
the MMA only prohibits discrimination against an employee because of his or her
status as a certified user under section 2103(b)(1), 35 P.S. §10231.2103(b)(1). While
employers are prohibited from discriminating or retaliating against individuals based
on their status as certified users of medical marijuana, section 2103(b)(2) of the MMA
provides that employers are not required to provide an accommodation to employees
on their premises, nor are employers prohibited from disciplining employees who are
under the influence of medical marijuana on work premises:
(2) Nothing in this act shall require an employer to make
any accommodation of the use of medical marijuana on
the property or premises of any place of employment.
This act shall in no way limit an employer’s ability to
discipline an employee for being under the influence of
medical marijuana in the workplace or for working while
under the influence of medical marijuana when the
employee’s conduct falls below the standard of care
normally accepted for that position.
35 P.S. §10231.2103(b)(2) (emphasis added). Furthermore, section 2103(b)(3) of the
MMA also provides that “[n]othing in this act shall require an employer to commit any
act that would put the employer or any person acting on its behalf in violation of Federal
law.” 35 P.S. §10231.2103(b)(3) (emphasis added).
Furthermore, section 510(4) of the MMA notes that users of medical
marijuana “may be prohibited by an employer from performing any duty which could
result in a public health or safety risk while under the influence of medical marijuana”
and such a “prohibition shall not be deemed an adverse employment decision even if
the prohibition results in financial harm for the [medical marijuana] patient.” 35 P.S.
§10231.510(4) (emphasis added). This provision would clearly apply to intensive care
Consequently, an individual cannot, for instance, claim that a drug addiction constitutes a disability
that requires accommodation.
14
unit nurses or other nurses who are under the influence of medical marijuana while on
the job or in training. Here, Swope is not even an employee, but a student at a post-
secondary institution. Even if she was an employee, HACC would apparently not be
required to provide an accommodation under these circumstances, as Swope is training
to be a nurse, which implicates a potential public health or safety risk.
Second, the MMA neither references PHRA nor PFEOA, nor provides
any language that directly addresses the usage of medical marijuana by students. The
MMA only instructs the Department of Education to promulgate regulations, which it
did not do. See 35 P.S. §10231.2104. Where, as here, the General Assembly “expressly
mentions one thing in a statute, we must assume that it intended to exclude all things
omitted.” Bickerton v. Insurance Commissioner, 808 A.2d 971, 976 n.5 (Pa. Cmwlth.
2002). The legislature could have amended the language of PHRA and PFEOA to
require accommodation of medical marijuana use, but chose not to do so. The
legislature also could have included an anti-discrimination statement for post-
secondary students within the MMA along the lines that it provided for employees, but
it chose not to do so. “[U]nder the principle of expressio unius est exclusio alterius,
the express mention of a specific matter in a statute implies the exclusion of others not
mentioned.” West Penn Allegheny Health System v. Medical Care Availability and
Reduction of Error Fund, 11 A.3d 598, 605-06 (Pa. Cmwlth. 2010).
Ultimately, the above choices reflect policy judgments that belong to the
legislature, not the courts. When the language of a statute is clear, we apply the words
of the statute as written. Failing to do so would result in this Court wrongfully
obtruding upon the province of the General Assembly to draft statutes according to
whatever policies it deems important. Again, the MMA provides no protections for
15
post-secondary students.9 Moreover, the General Assembly did not amend or
otherwise alter PHRA and PFEOA provisions that exclude users of medical marijuana
from their definitions of disability.10 Hence, we are unable to do so.
9
In fact, an earlier version of the MMA prohibited schools from refusing to enroll or otherwise
penalize a medical marijuana patient solely for having a medical marijuana access card or using
medical marijuana in accordance with the MMA. See S.B. 3, 199 Gen. Assemb., Reg. Sess. 2015-
2016 (Pa. 2015), available at https://www.legis.state.pa.us/cfdocs/legis/PN/Public/btCheck.cfm?txt
Type=PDF&sessYr=2015&sessInd=0&billBody=S&billTyp=B&billNbr=0003&pn=0840 (last
visited October 28, 2020). However, these student protections were not included in the version of the
MMA that was enacted into law.
10
HACC also argues that PHRA and the ADA should be interpreted in a co-extensive manner
and that adopting the PHRC’s interpretation of the disability exclusion for illegal drug users would
place the two statutes in conflict. Generally, PHRA and the ADA are interpreted in a co-extensive
manner because both laws deal with similar subject matter and are grounded on similar legislative
goals. Imler v. Hollidaysburg American Legion Ambulance Service, 731 A.2d 169, 173-74 (Pa.
Super. 1999); see also Kelly v. Drexel University, 94 F.3d 102, 105 (3d Cir. 1996). However, in
interpreting PHRA, Pennsylvania courts are not bound by federal court decisions interpreting the
ADA. Canteen Corp. v. Pennsylvania Human Relations Commission, 814 A.2d 805, 811-12 n.5 (Pa.
Cmwlth. 2003); Imler, 731 A.2d at 174. Yet, in a case of first impression, it may be appropriate to
look to federal decisions involving similar federal statutes for guidance. Canteen Corp., 814 A.2d at
812 n.5.
Like PHRA, section 511 of the ADA, 42 U.S.C. §12210, excludes illegal drug users from the
term “individual with a disability” when “the covered entity acts on the basis of such use,” and defines
“illegal use of drugs” as the “use of drugs which is unlawful under the [CSA.]” Id. PHRA uses
different language, but accomplishes similar ends. See 43 P.S. §954(p.1) (excluding “current, illegal
use of or addiction to a controlled substance” from the definition of “handicap or disability”). As
pointed out by HACC, in James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012), the United States
Court of Appeals for the Ninth Circuit held that medical marijuana use, which was permitted under
the law of Washington State but prohibited by federal law, qualified as an illegal use of drugs for
purposes of the ADA and, therefore, that the plaintiff’s use of medical marijuana brought him within
the ADA’s illegal drug exclusion. Id. at 405. However, HACC has not cited to any United States
Court of Appeals for the Third Circuit decisions, or any other federal court decisions, which
interpreted the Pennsylvania MMA as it relates to the ADA. Moreover, unlike the federal ADA,
PHRA is a Pennsylvania law, which the General Assembly has the authority to amend. Thus,
although we ultimately find in HACC’s favor and conclude that the MMA did not amend PHRA,
because we are not bound by federal decisions interpreting the ADA, there are no federal decisions
(Footnote continued on next page…)
16
ii. The MMA Does Not Amend PHRA or PFEOA
Notwithstanding the absence of any statutory provision requiring
accommodation of students’ use of medical marijuana, the PHRC contends that the
MMA modified both PHRA and PFEOA to require that educational institutions
accommodate medical marijuana use. In particular, the PHRC argues that medical
marijuana use is no longer considered illegal drug use under either PHRA or PFEOA
because section 303(a) of the MMA expressly provides that “[n]otwithstanding any
provision of law to the contrary, use or possession of medical marijuana as set forth in
this act is lawful,” 35 P.S. §10231.303(a). However, this argument is not persuasive
as it is contrary to basic statutory construction precepts.
First, neither section 303 of the MMA, nor any other provision in that law,
mention PHRA or PFEOA. Except when a statute purports to be a revision of all
statutes upon a particular subject or to establish a uniform and mandatory system
covering a class of subjects, “a later statute shall not be construed to supply or repeal
an earlier statute unless the two statutes are irreconcilable.” Section 1971 of the
Statutory Construction Act of 1972, 1 Pa.C.S. §1971. Thus, “there is a very strong
presumption that a statute does not impliedly repeal another statute.” Borough of
Emmaus v. Pennsylvania Labor Relations Board, 156 A.3d 384, 398 n.9 (Pa. Cmwlth.
2017); see also In re Delinquent Tax Sale, 477 A.2d 603, 605 (Pa. Cmwlth. 1984)
(noting that “implied repeals are not favored by the law”); City of Pittsburgh v.
Pennsylvania Public Utility Commission, 284 A.2d 808, 811 (Pa. Cmwlth. 1971)
(concluding “there is a presumption against implied repeal”). “The question of whether
a statute has been impliedly repealed by a later statute is exclusively a question of
interpreting the MMA, and the General Assembly possesses the authority to amend or repeal the
disability exclusions for marijuana users present in PHRA, we place little to no weight on either the
language of the ADA, or federal cases interpreting it, in our overall analysis of this matter.
17
legislative intent.” HSP Gaming, L.P. v. City of Philadelphia, 954 A.2d 1156, 1175
(Pa. 2008). Because repeals by implication are not favored, they “will not be implied
unless there be an irreconcilable conflict between statutes embracing the same subject
matter.” Id. Moreover, since implied repeals are not favored, “legislative intent to
repeal a statute by enacting another must be clearly shown.” Id.
Here, because the MMA is not irreconcilable with any provision of PHRA
or PFEOA, we decline to conclude that the MMA impliedly repealed any portion of
those statutes. Although the MMA provides that medical marijuana use is lawful in
Pennsylvania, given the silence in the MMA with respect to PHRA and PFEOA and
the absence of any specific protection for students, there is no reason to infer that the
General Assembly intended to require educational institutions to accommodate a
student’s use of medical marijuana. Moreover, the MMA is not irreconcilable with
either PHRA or PFEOA due to the different objectives of the statutes. The purpose of
PHRA and PFEOA is to remedy various types of discrimination, as opposed to the
MMA, which legalized medical marijuana. The absence of a statutory provision
requiring post-secondary educational institutions to accommodate medical marijuana
usage, however, does not negate or frustrate the MMA’s overall intent of making
medical marijuana lawful in Pennsylvania.
In Ross v. RagingWire Telecommunications, Inc., 174 P.3d 200 (Cal.
2008), the California Supreme Court reached a similar result. Prior to legalizing
recreational marijuana, California voters approved a 1996 initiative that gave users of
medical marijuana a defense to certain state criminal charges involving the drug. Id.
at 202. After the plaintiff was discharged by his employer for medical marijuana use,
he brought a lawsuit against his employer under California’s anti-disability
discrimination law. Id. Like PHRA, California’s anti-discrimination law did not
require employers to accommodate the use of illegal drugs. Id. at 204-05. The
California Supreme Court determined that although California voters had decided to
18
legalize medical marijuana for certain uses, there was nothing in California’s medical
marijuana law to suggest that California voters intended the law to require employers
to accommodate employees’ medical marijuana use under California’s anti-
discrimination law. Id. at 205-07. The absence of any statutory provision requiring
accommodation of medical marijuana usage by students renders the circumstance
analogous to that at issue in Ross. That is, there is nothing in the MMA suggesting that
the General Assembly intended to require educational institutions to accommodate
students’ usage of medical marijuana under PHRA or PFEOA.
Our conclusion is bolstered by the MMA’s reference to other statutes. The
MMA references the Pennsylvania Drug Act in section 304(a), and section 2101, 35
P.S. §§10231.304(a), 10231.2101. The fact that the MMA explicitly amended the
Pennsylvania Drug Act, but did not specifically amend either PHRA or PFEOA, can
only be interpreted as meaning the General Assembly did not intend to amend either
PHRA or PFEOA. Moreover, the MMA explains 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.”
35 P.S. §10231.102(4) (emphasis added). Because the General Assembly intended that
the program be temporary pending Federal approval, it is clear that the legislature
recognized the Federal CSA, and any other federal prohibition against the use of
medical marijuana. Importantly, “it is not for the courts to add, by interpretation, to a
statute, a requirement which the legislature did not see fit to include.” Commonwealth
v. Rieck Investment Corp., 213 A.2d 277, 282 (Pa. 1965). The General Assembly could
have explicitly amended PHRA and PFEOA, but it did not, and we are unable to
presume that it intended to amend those laws by implication.
19
The PHRC’s Interpretation of PHRA is Not
iii.
Entitled to Deference.
The PHRC also argues that because PHRA mandates that the act should
be construed liberally, we should adopt the PHRC’s interpretation with respect to the
accommodation of medical marijuana use. We note that section 12 of PHRA states
that the provisions of PHRA “shall be construed liberally for the accomplishment of
purposes thereof, and any law inconsistent with any provisions hereof shall not apply.”
43 P.S. §962; see Chestnut Hill College v. Pennsylvania Human Relations Commission,
158 A.3d 251, 258 (Pa. Cmwlth. 2017) (observing that PHRA should be construed
liberally to accomplish its purposes). However, as our Supreme Court has held, the
liberal construction mandate of PHRA only requires that we “adopt a construction
which, without doing violence to the language of the statute, best promotes the goal of
equal employment.” Winn v. Trans World Airlines, Inc., 484 A.2d 392, 398 (Pa. 1984)
(emphasis added). Moreover, it is not PHRA or any particular interpretation thereof
that commands our conclusion here. Rather, it is the MMA, or, more specifically, the
absence of any provision in the MMA providing the sort of mandate that the PHRC
seeks, that drives our holding. As stated above, our conclusion is based firmly on the
ground that the MMA does not require the accommodation of medical marijuana on an
employer’s premises, nor does the same provision of the MMA apply to or even
mention post-secondary students. Further, the legislature included a specific provision
that addressed discrimination due to the use of medical marijuana and stated that an
employer does not have to accommodate its use or possession on the premises or where
public safety would be risked. See 35 P.S. §§10231.2103(b), 10231.510(4). As a
result, HACC cannot be required under the MMA to accommodate the use of a drug
that is proscribed by PHRA and PFEOA, via adoption of the Federal CSA, to treat a
disability. Therefore, although PHRA should be construed liberally, because the
PHRC’s proposed, liberal construction of PHRA would require us to effectively rewrite
20
the MMA to include protections and provisions that the General Assembly did not see
fit to include, we are unable to adopt the PHRC’s preferred interpretation of the
statutory scheme.
Additionally, the PHRC argues that we should defer to its interpretation
of PHRA and PFEOA because it is the administrative agency tasked with enforcing
those statutes. In general, “[w]hen considering an agency’s interpretation of a statute
that it is charged with implementing and enforcing, we afford substantial deference to
that interpretation.” Office of Administration v. Pennsylvania Labor Relations Board,
916 A.2d 541, 550 n.11 (Pa. 2007); see Winslow-Quattlebaum v. Maryland Insurance
Group, 752 A.2d 878, 881 (Pa. 2000) (“It is well settled that when the courts of this
Commonwealth are faced with interpreting statutory language, they afford great
deference to the interpretation rendered by the administrative agency overseeing the
implementation of such legislation.”).
However, “[w]hen an administrative agency’s interpretation . . . is
inconsistent with the statute itself, or when the statute’s meaning is unambiguous, such
an administrative interpretation carries little weight.” Office of Administration, 916
A.2d at 550 n.11. Consequently, “[w]e must give deference to the interpretation of the
legislative intent of a statute made by an administrative agency only where the language
of that statute is not explicit or ambiguous. A statute is ambiguous or unclear if its
language is subject to two or more reasonable interpretations.” Bethenergy Mines Inc.
v. Department of Environmental Protection, 676 A.2d 711, 715 (Pa. Cmwlth. 1996)
(citation omitted); see also Section 1921 of the Statutory Construction Act of 1972, 1
Pa.C.S. §1921 (providing that “[w]hen the words of [a] statute are not explicit, the
intention of the General Assembly may be ascertained by considering, among other
matters[,] . . . administrative interpretations of such statute” (emphasis added));
Velocity Express v. Pennsylvania Human Relations Commission, 853 A.2d 1182, 1185
(Pa. Cmwlth. 2004) (holding that courts “need not give deference to any agency when
21
its construction frustrates legislative intent” and, therefore, although “courts often defer
to an agency’s interpretation of the statutes it administers, where . . . the meaning of a
statute is a question of law for the court” and when the court is “convinced that the
agency’s interpretation is unwise or erroneous, that deference is unwarranted”).
First, we observe that although the PHRC’s interpretation of PHRA and
PFEOA may be entitled to deference where those statutes are ambiguous, because the
PHRC is responsible for implementing and enforcing them, we note that PHRA and
PFEOA are not ambiguous and moreover, the PHRC is not responsible for
implementing or enforcing the MMA; thus, its interpretation of that statute should not
be afforded any weight. Second, even if the statutes were otherwise determined to be
ambiguous, to the extent that the PHRC is entitled to deference, we note that both
statutes exclude disability discrimination protections for current users of illegal
controlled substances with regard to their use of illegal substances. This is in accord
with the legislature’s decision to look to the definition of controlled substances as
defined by the Federal CSA, which deems marijuana a Schedule I controlled substance
without any accepted medical use. See Section 4(p.1) of PHRA, 43 P.S. §954(p.1);
Section 3(7) of PFEOA, 24 P.S. §5003(7). Moreover, as discussed previously, based
on its plain language and structure, the MMA did not amend or repeal the disability
exclusions of section 4(p.1) of PHRA or section 3(7) of PFEOA. Hence, even if PHRA
or PFEOA were ambiguous, we would afford the PHRC no deference because its
construction of the statute frustrates legislative intent. As we have explained in detail
above, the legislature, in the face of the MMA, chose not to amend PHRA or PFEOA.
This abstention on behalf of the legislature evinces its intent that current users of illegal
drugs not be subject to protection with regard to their illegal use of drugs. Of course,
“[t]he cardinal rule of all statutory construction is to ascertain and effectuate the intent
of the Legislature.” O’Rourke v. Department of Corrections, 778 A.2d 1194, 1201 (Pa.
2001).
22
Finally, we address our Supreme Court’s recent opinion in Gass v. 52nd
Judicial District, Lebanon County, 232 A.3d 706 (Pa. 2020), in which a local judicial
district implemented a probation policy that prohibited individuals under court
supervision from using medical marijuana. Id. at 707. Specifically, the policy
prohibited “the active use of medical marijuana, regardless of whether the defendant
has a medical marijuana card, while the defendant is under supervision by the [local
probation department.]” Id. at 708. The policy stated that “[s]ince medical marijuana
use (medical or recreational) is . . . illegal under [f]ederal law, and the [local judicial
district] and the [local probation department] should not knowingly allow violations of
law to occur, the prohibition against such use is required.” Id. at 708-09. In other words,
in contravention of the MMA, the local judicial district incorporated the Federal CSA
despite that the General Assembly had not done so.
The Court framed the question before it as “whether the [p]olicy violates
the immunity provision of the MMA.” Gass, 232 A.3d at 711. The immunity provision
of the MMA provides that an individual
shall [not] be subject to arrest, prosecution or penalty in
any manner, or denied any right or privilege, including
civil penalty or disciplinary action by a Commonwealth
licensing board or commission, solely for lawful use of
medical marijuana or manufacture or sale or dispensing
of medical marijuana, or for any other action taken in
accordance with this act . . . .
35 P.S. §10231.2103(a) (emphasis added). See Gass, 232 A.3d at 708. The Court in
Gass ultimately concluded that a local policy cannot usurp a state law simply by
reference to a federal law.
The Supreme Court concluded that while the local policy pointed to the
Federal CSA, “the core principle of federalism recognizing dual sovereignty between
the tiers of government . . . [and that in] enacting the MMA, the Pennsylvania
Legislature proceeded pursuant to its independent power to define state criminal law
23
and promote the health and welfare of the citizenry.” Gass, 232 A.3d at 714.
Furthermore, the Court explained that
[w]hile the circumstances are certainly uneasy – since
possession and use of medical marijuana remains a
federal crime – we find that the [local judicial district]
cannot require state-level adherence to the federal
prohibition, where the General Assembly has specifically
undertaken to legalize the use of medical marijuana for
enumerated therapeutic purposes.
Id. (emphasis added). “Federalism, central to the constitutional design, adopts the
principle that both the National and State Governments have elements of sovereignty
the other is bound to respect.” Arizona v. United States, 567 U.S. 387, 398 (2012).
The instant matter is distinguishable because the General Assembly chose
not to require employers to accommodate an employee’s, let alone a post-secondary
student’s, usage of medical marijuana under the MMA, PHRA, or PFEOA, which are
state legislative enactments. This is because the General Assembly specifically
incorporated the Federal CSA into PHRA and PFEOA. Specifically, “(3) being
regarded as having such an impairment, but such term does not include current, illegal
use of or addiction to a controlled substance, as defined in section 102 of the [Federal
CSA] (Public Law 91-513, 21 U.S.C. §802),” 43 P.S. §954(p.1), and “(iii) being
regarded as having such an impairment, but does not include current, illegal use of or
addiction to a controlled substance, as defined in section 102 of the [Federal CSA]
(Public Law 91-513, [21 U.S.C. §802]).” 24 P.S. §5003(7). Contrary to the Gass case,
here the General Assembly exercised its law making authority to include a provision
in PHRA and PFEOA to require compliance with the Federal CSA. After enacting the
MMA, the legislature chose not to remove those restrictions from PHRA or PFEOA.
The General Assembly has clearly spoken and the language in PHRA and PFEOA
reflect the General Assembly’s intent.
24
Conclusion
The MMA does not provide any requirements for accommodations of post-
secondary students who use medical marijuana for a disability. Moreover, the General
Assembly chose not to amend PHRA or PFEOA after passage of the MMA to otherwise
remove the applicability of the Federal CSA, which prohibits the use of Schedule I
drugs, including medical marijuana. For these reasons, HACC, an educational
institution, was not required to provide Swope a reasonable accommodation for her use
of medical marijuana. Thus, we must conclude that Swope’s claim was legally
insufficient and the PHRC erred in denying HACC’s motion to dismiss. Accordingly,
we reverse the PHRC’s interlocutory order and remand the instant matter to the PHRC
to grant HACC’s motion to dismiss consistent with this opinion.
________________________________
PATRICIA A. McCULLOUGH, Judge
25
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Harrisburg Area Community College, :
Petitioner :
: No. 654 C.D. 2019
v. :
:
Pennsylvania Human Relations :
Commission, :
Respondent :
ORDER
AND NOW, this 29th day of October, 2020, the March 26, 2019
interlocutory order of the Pennsylvania Human Relations Commission (PHRC) is
REVERSED, and the instant matter is REMANDED to the PHRC to GRANT
Harrisburg Area Community College’s motion to dismiss consistent with this
opinion.
Jurisdiction relinquished.
________________________________
PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Harrisburg Area Community College, :
Petitioner :
:
v. :
:
Pennsylvania Human Relations :
Commission, : No. 654 C.D. 2019
Respondent : Argued: May 11, 2020
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE J. ANDREW CROMPTON, Judge
CONCURRING OPINION
BY JUDGE COVEY FILED: October 29, 2020
While I agree with the Majority that we are bound by statute to reverse
the Pennsylvania Human Relations Commission’s interlocutory order, I write
separately to urge the General Assembly to amend the Pennsylvania Human
Relations Act (PHRA)1 and the Pennsylvania Fair Educational Opportunities Act
(PFEOA)2 so the benefits the General Assembly created in the Pennsylvania Medical
Marijuana Act (MMA)3 for the citizens of this Commonwealth are not illusory or
applicable in only limited circumstances; thereby, creating an egregious result as is
demonstrated in the instant case.
When the General Assembly enacted the MMA, it declared in Section
102 thereof:
(1) Scientific evidence suggests that medical marijuana is
one potential therapy that may mitigate suffering in some
patients and also enhance quality of life.
1
Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§ 951-963.
2
Act of July 17, 1961, P.L. 776, as amended, 24 P.S. §§ 5001-5010.
3
Act of April 17, 2016, P.L. 84, 35 P.S. §§ 10231.101-10231.2110.
(2) The Commonwealth is committed to patient safety.
Carefully regulating the program which allows access to
medical marijuana will enhance patient safety while
research into its effectiveness continues.
(3) It is the intent of the General Assembly to:
(i) Provide a program of access to medical marijuana
which balances the need of patients to have access to the
latest treatments with the need to promote patient safety.
(ii) Provide a safe and effective method of delivery of
medical marijuana to patients.
(iii) Promote high quality research into the effectiveness
and utility of medical marijuana.
35 P.S. § 10231.102 (emphasis added).
As a co-equal branch of government, this Court has no authority to fulfill
the General Assembly’s intent as set forth in the MMA of providing access to
medical marijuana to those individuals whose physicians have prescribed it, while
simultaneously enforcing the protections and rights the General Assembly created in
the PHRA and the PFEOA. Due to the General Assembly’s failure to revise the
PHRA and the PFEOA to reflect the MMA’s intent, an individual otherwise granted
access to medical marijuana under the MMA loses all protections and rights of the
PHRA and the PFEOA. In order for Pennsylvania citizens to have access to medical
marijuana while receiving the protections and rights of the PHRA and the PFEOA,
the General Assembly must amend the PHRA and the PFEOA to remove the “as
defined in Section 102 of the Controlled Substances Act (Public Law 91-513, 21
U.S.C. § 802)” restriction from its description of illegal use of a controlled substance.
See Section 4(p.1) of the PHRA, 43 P.S. § 954(p.1); Section 3(7) of the PFEOA, 24
P.S. § 5003(7).
The conflict among these statutes has created an absurd result in
requiring Pennsylvania citizens to choose the benefits of medical marijuana or the
AEC - 2
protections of the PHRA and the PFEOA. 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. “Nevertheless,
‘[w]here the language of the governing statute is clear (or clear enough), . . . the
solution is legislative – and not judicial – adjustment.’” Gass v. 52nd Judicial
District, Lebanon County, 232 A.3d 706, 715 (Pa. 2020) (quoting Williams v. City of
Phila., 188 A.3d 421, 436 (Pa. 2018)).
For these reasons, the General Assembly is, therefore, strongly
encouraged to revise all affected areas of the law to accurately reflect its declaration
of intent set forth in the MMA to permit Pennsylvania citizens access to medical
marijuana to mitigate suffering and enhance their quality of life.
__________________________
ANNE E. COVEY, Judge
AEC - 3