An attorney for Pittsburgh Water and Sewer Authority says PWSA was following its policies and abiding by federal law last year when it fired an employee who failed a drug test but has a state-issued card to use medical marijuana.
The worker’s attorney says PWSA violated the state Medical Marijuana Act and Pennsylvania’s public pot policy by firing him.
Allegheny County Judge W. Terrence O’Brien will decide if the lawsuit filed in December by Terrence Suber will move forward. Suber, a North Side resident, wants his job back, plus back pay, compensatory and punitive damages in excess of $50,000, according to the lawsuit.
On Thursday, the judge heard arguments from Philadelphia attorney Samuel Dion, who represents Suber, and Downtown attorney James Thomas, who represents PWSA, over written preliminary objections filed in the case.
“Until the federal government moves left or right, nothing is clear,” Thomas told the judge.
Marijuana, whether used for medicinal or recreational purposes, is an illegal drug under federal law. PWSA randomly screens its employees and if they fail, the policy is to terminate them, as happened with Suber on July 3, 2019, Thomas said.
PWSA would be violating federal drug laws by allowing employees, even those with state-issued medical marijuana cards, to keep working, Thomas said.
Federal laws overrule state laws, Thomas said.
PWSA is violating provisions of the state Medical Marijuana Act that protect workers from being fired because they use marijuana medically, Dion said.
The drug isn’t being used on federal property and Suber didn’t transport it across state lines so he can’t be prosecuted federally for any violation of the law, Dion said.
Suber starting working as a PWSA customer service representative in March 2019 and in May was diagnosed with post-traumatic stress disorder. Suber was using medical marijuana to treat the PTSD, according to the lawsuit.
There aren’t many cases that have been settled, especially in Pennsylvania, for the lawyers to cite or the judge to use to guide a decision, Thomas said.
He introduced a few cases from around the country and one in Lackawanna County involving a Scranton-area woman in a similar circumstance that a judge ruled can move forward.
There are at least two other civil lawsuits that have been filed in Allegheny County court that are pending further litigation. There’s also a case involving a Pittsburgh police officer who is in a legal Catch-22 because of his medical marijuana use. Police aren’t allowed to use marijuana under other state laws.
Dion said he will be filing a written response to the cases Thomas submitted to the court and the judge will rule on the objections that have been filed in the suit, which include a request to dismiss by Thomas because, according to his reasoning, PWSA can’t violate a federal law to abide by a contradictory state law, he said.
“Do the feds ever prosecute?” O’Brien asked Thomas at one point in the hearing.
“They have not, but they could. I don’t think PWSA should guess,” Thomas said.
