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Passing the Smell Test – How Does it Work When it Comes to Medical Marijuana

Other than the fact that all marijuana is a Schedule 1 drug under the Controlled Substances Act, and illegal at the federal level, there is nothing simple and straight forward about the law on marijuana use in Pennsylvania (or in any part of the country) right now.  From law enforcement to business owners, there is […]

Other than the fact that all marijuana is a Schedule 1 drug under the Controlled Substances Act, and illegal at the federal level, there is nothing simple and straight forward about the law on marijuana use in Pennsylvania (or in any part of the country) right now.  From law enforcement to business owners, there is a struggle to understand what is legal as courts and agencies are hard-pressed to keep up with the legalization of marijuana and the conflict between state and federal laws.

On April 6, 2016, Pennsylvania passed the Medical Marijuana Act (the “Act”) which legalized the use or possession of medical marijuana in the Commonwealth.  By February 15, 2018, medical marijuana was available for distribution at Pennsylvania dispensaries for patients who meet certain requirements.  Specifically, the patient has to have one of seventeen enumerated “serious medical conditions,” receive certification from a practitioner to acquire the marijuana from an approved dispensary in Pennsylvania and be in possession of a valid identification card issued by the Pennsylvania Department of Health at any time they are in possession of medical marijuana.  The patient must also be under the ongoing care of the practitioner who issued the certification during any in-person visit to the dispensary.  There is no reciprocity between the states, meaning that a patient must have a Pennsylvania certification to get medical marijuana from a Pennsylvania dispensary.

The Act confirms that medical marijuana may only be dispensed as a pill, oil, topical form (including gel, creams or ointments), vaporization or nebulization, tincture or liquid.  Smoking marijuana is not permitted by the Act.  Likewise, marijuana in edible forms, such as brownies, is illegal unless it is done to aid ingestion by the patient – the medical marijuana cardholder.    Despite these clear designations and protections under the Act for the legalized use of medical marijuana in Pennsylvania, the rest of the state’s legislation remains unchanged.

Recently in the case of Commonwealth v. Barr, the Honorable Maria L. Dantos of the Lehigh County Court of Common Pleas granted the Defendant’s motion to suppress evidence that claimed the  search of a vehicle by the police was improper since it was based upon the smell of burnt and raw marijuana through the open window of the vehicle and a passenger in the vehicle possessed a medical marijuana card.  In his defense, the Defendant produced an expert who testified that the odor of ingesting medical marijuana with a vaping pen was the same as the odor of smoking regular marijuana from an unlawful source.  The arresting officer admitted she was not aware that the odor was the same.  In rendering the decision, Judge Dantos highlighted that this search and subsequent arrest of the Defendant for possession of marijuana (amongst other charges) demonstrated the “clear disconnect between the medical community and the law enforcement community” with regard to the legalization of medical marijuana and found that the smell of marijuana alone does not provide law enforcement with probable cause to conduct a search.

This decision raises many questions for business owners and their interactions with their employees.  For instance, what happens when an employer encounters an employee who smells of marijuana but shows no evidence of any other impairment?  Will the smell of marijuana be enough to create the reasonable suspicion needed to demand a drug test?  Will the smell of marijuana potentially place an employer on notice of a possible disability?  Does the employer have to give the employee the opportunity to provide a legitimate medical reason for smelling of marijuana before it can take any employment action?  How do the answers to these questions change when the employee is in a safety-sensitive position?  There is little, if any, guidance from the courts on these scenarios; however, applying the reasoning in the Barr case, the smell test, alone, is likely not enough for an employer to take adverse employment action against its employee.

As these types of decisions continue to be made, the legal landscape surrounding marijuana use in Pennsylvania will only evolve.  Where do we go next?

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