Note: For additional information about PA’s new medical marijuana law, watch the Chamber’s Lunch Seminar on medical marijuana and workplace drug policy from Nov. 2018.
Pennsylvania legalized medical marijuana for the treatment of certain medical conditions in 2016, but marijuana still remains a controlled substance under federal law. In 2019, the infrastructure of licensed growers and dispensaries is well-developed throughout the Commonwealth, and many Pennsylvanians holding prescriptions for medical marijuana have been able to obtain medical marijuana for therapeutic use. For that reason, Pennsylvania employers who employ or may someday employ medical marijuana users must review their employment policies to avoid conflicting with the new law.
The Pennsylvania Medical Marijuana Act (“MMA”) bans employers from discriminating against an employee solely on the basis of the employee being permitted to use medical marijuana. For example, an employer cannot fire or refuse to hire an employee or applicant after learning that the employee carries the ID card required to purchase medical marijuana. An employer generally should not inquire about whether an employee or applicant possesses a medical marijuana prescription and/or ID card to purchase medical marijuana. Also, employers should have specific policies about drug use and testing in the workplace that consider the effects of the MMA.
Zero-tolerance drug policies are still permitted under the MMA, but employers should closely review these policies to avoid discrimination. Employees who possess the ID card to purchase medical marijuana may be prohibited from using or being under the influence of marijuana at work. Drug testing, if conducted, should be done pursuant to an established policy made available to employees.
If drug testing is performed within the guidelines of the established policy, then an employer is more likely to avoid discrimination claims; drug testing should also be conducted and enforced consistently. It is possible that drug testing would reveal off-site marijuana use that does not indicate the employee is currently under the influence. In these cases, employers should exercise caution before terminating an employee (if the policy authorizes termination) to avoid potential discrimination based on the underlying medical condition being treated by medical marijuana – there should be a connection between the off-site marijuana use and workplace activities warranting the termination.
Finally, the MMA restricts medical marijuana users from working in certain dangerous occupations, including work related to public utilities, mining, and in settings deemed by the employer to be life-threatening. Further, federal laws requiring drug testing and restricting marijuana use in certain occupations are unaffected by the MMA; therefore, employers currently required to conduct testing under federal law must continue to do so.
Complying with the MMA will not require most employers to make major changes to the way they operate or how they screen employees, but sensitivity to the nondiscrimination provisions in the MMA will go a long way to avoiding potential discrimination claims and compliance issues as medical marijuana use becomes more common in the coming years.