The Act contains a number of provisions that retain the rights of employers to maintain a drug-free workplace even as it respects the rights of certified medical marijuana users.

On April 17, 2016, Pennsylvania Governor Tom Wolf signed the Medical Marijuana Act (“the Act”) into law. The Act, which takes effect on May 17, 2016, legalizes the use and possession of medical marijuana under specified circumstances and provides for a comprehensive program of registration, prescription, dispensing and permitted use of medical marijuana.

The Act limits the lawful use of medical marijuana to those individuals with a “serious medical condition.” Included among the list of medical conditions that meet the definition of “serious medical condition” are cancer, HIV, Parkinson’s disease, multiple sclerosis, epilepsy, post-traumatic stress disorder and sickle cell anemia.

Many Pennsylvania employers currently enforce substance abuse policies that limit employee use, possession or distribution of illegal drugs in the workplace. Fortunately, the Act contains a number of provisions that retain the rights of employers to maintain a drug-free workplace even as it respects the rights of certified medical marijuana users.

Non-Discrimination

The Act contains a non-discrimination provision prohibiting employers from discharging, threatening, refusing to hire, or otherwise discriminating or retaliating against an employee with respect to the employee’s compensation, terms, conditions, location or privileges of employment solely based on an employee’s status as a certified medical marijuana user.

Although the term “applicant” is absent from the statutory language, the reference to “refuse to hire” indicates that employers are prohibited from disqualifying an applicant for employment solely based on the applicant’s status as a certified medical marijuana user. What remains uncertain under the Act, however, is the extent to which an applicant who is a certified medical marijuana user may be disqualified from a position because the applicant fails a pre-employment drug test, or whether an employee may be denied a promotion, job transfer or otherwise disciplined due to failing a random drug test. The point that needs to be clarified is whether, under either of these two scenarios, it could be argued that any adverse action is solely based on an employee’s status as a certified medical marijuana user.

Situations Where Disciplinary Action Is Permitted

Notably, the Act provides several exceptions to the non-discrimination prohibition that acknowledge an employer’s right to take action against an employee consistent with provisions typically contained within an employer’s substance abuse policy:

• Employers are not required to accommodate an employee’s actual use of medical marijuana “on the property or premises of any place of employment.” Thus, an employee may be disciplined for using marijuana while on the property or premises of the employee’s place of employment.
• Employers may still discipline an employee for being under the influence of medical marijuana “in the workplace.”
• Employers may still discipline an employee 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.”
• Employers are not required to commit any act that would put the employer, or any person acting on its behalf, in violation of federal law. For example, this provision would presumably permit an employer to discipline or otherwise take action against an employee who failed to comply with United States Department of Transportation’s requirements related to substance use.
• Individuals are also prohibited from performing any task under the influence of medical marijuana where doing so would constitute negligence, professional malpractice or professional misconduct.
• The Act also focuses on the safety concerns associated with medical marijuana use by Pennsylvania residents who are certified medical marijuana users:
  • Such individuals may not operate or be in physical control of chemicals that require a permit issued by the federal government or a state government or their respective agency, or high-voltage electricity or any other public utility while under the influence (defined as a blood content of more than 10 nanograms of active tetrahydrocannabis per milliliter of blood in serum).
  • Such individuals are prohibited from performing the following duties while under the influence of medical marijuana: (1) working at heights or in confined spaces, (2) performing any task that an employer deems life-threatening to the user or to other employees or (3) performing any duty that could result in a public health or safety risk. With respect to the latter two circumstances, employers may take adverse employment action against users even if that action results in financial harm to the user.

These provisions confirm key employer rights with respect to limiting drug use in the workplace. However, in light of the absence of definitions for key terms, such as “workplace,” “property or premises of any place of employment,” “under the influence” and “standard of care,” the breadth of these provisions will likely be tested in the courts. Anticipated regulations, due on or before November 17, 2016, may shed light on the scope of these terms.

What This Means for Employers

Pennsylvania employers should review their drug and alcohol policies and practices to ensure compliance with the Pennsylvania Medical Marijuana Act.

• With respect to hiring practices, employers may want to ensure that they do not impose a blanket prohibition on hiring anyone who is a certified medical marijuana user.
• Employer drug-testing practices and response to positive test results should be evaluated in light of the Act. Although not specifically addressed in the Act, presumably, an employer would likely have a stronger position to take adverse action based on the positive results of a drug test conducted when an employer has reasonable suspicion that an employee is unfit for duty as compared to a random drug test. Any adverse action taken by an employer may also be more defensible when the employer can show that the employee’s conduct fell below an acceptable standard of care.
• Employers should also be sensitive to the interplay with the Americans with Disabilities Act (ADA), as many certified medical marijuana users will have an underlying disability. The risk of an ADA discrimination claim is heightened where an employer asks inappropriate questions about an individual’s disability or makes decisions based on the individual’s disability, as opposed to based on the individual’s violation of a conduct standard or impermissible use of medical marijuana while at work.
• Where an employer seeks to base its decision on a federal law that prohibits an employer from hiring an applicant or retaining an employee who tests positive for drugs, such as marijuana, the federal law should preempt the state law. However, before relying on such provisions, employers should look at what the federal law actually mandates.
• If operating in multiple jurisdictions, employers should consider other state law distinctions on issues, such as whether certified medical marijuana users are protected from adverse employment action, whether employers must provide accommodations for employees who are working under the influence of medical marijuana and the interrelation between the state medical marijuana law and any state drug testing law.

For Further Information

If you have any questions about this Alert, please contact any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

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