The “Legalization” of Marijuana and its Impact on the Workplace

by Edward Easterly & George Hlavac

On May 17, 2016, the Medical Marijuana Act (the “MMA”) became effective in Pennsylvania.  Pennsylvania has now joined almost half of the United States (and the District of Columbia) by legalizing the use of medical marijuana.  Several other states (and the District of Columbia) have gone a step further by legalizing the use of recreational marijuana.

Pennsylvania’s MMA permits the use of medical marijuana for individuals suffering from certain medical ailments.  Does this mean that employees are free to turn on some Grateful Dead or Snoop Dog, get high at work, and claim that their actions are “legal?”  Wrong.  Despite certain protections provided by the MMA, employees are still subject to both state and federal limitations on their “legal” use of marijuana.  The question now is what are an employer’s rights and obligations going forward.

As an initial matter, the MMA prohibits employers from discriminating against employees who use medical marijuana.  In this regard, the MMA prohibits employers from subjecting an employee to an adverse act (e.g. termination, refusal to hire, discipline) based solely on the employee’s status as a medical marijuana user.  The MMA’s anti-discrimination provision does not, however, provide employees with free reign to walk around the office using marijuana or come to work under the influence of marijuana.

In this regard, the Act specifically states that an employer is permitted to take an adverse action against an employee if their job performance suffers or they are under the influence of marijuana at work.  In addition to exceptions set forth in the Act, the federal government has not yet adopted legislation legalizing marijuana.  Consequently, the federal prohibition further limits an individual’s ability to use the drug, regardless of the new Pennsylvania law.  Accordingly, if an individual uses marijuana, whether for medical, recreational, or other purposes, they are committing a federal crime by using a Schedule I narcotic (which also includes heroin, acid (LSD), ecstasy, and methaqualone).

In light of the foregoing, employers are faced with numerous issues pertaining to medical marijuana users.  The biggest issue, however, relates to the MMA’s interaction with the Americans with Disabilities Act (the “ADA”).  The ADA prevents an employer from subjecting an employee to discrimination on the basis of his or her actual or perceived disability.  The ADA further requires an employer to provide an employee with a “reasonable accommodation” and engage in the “interactive process” of determining whether such an accommodation is possible.   Once an employee notifies the employer of the need for accommodation for a disability, the employer must communicate with the employee and solicit whatever information is necessary to determine if a suitable accommodation is possible.  The ADA, however, does not require an employer to accommodate an “illegal activity.”

As noted above, under federal law, marijuana remains an illegal drug and, therefore, the use of marijuana constitutes an illegal act.  To date, no court has found in favor of an employee who has been terminated for using medical marijuana, regardless of the state law.  Conversely, the courts that have addressed this issue have determined that an employer is still permitted to terminate an employee who engages in activity that violates federal law.  Accordingly, employers may still conduct drug testing and discipline or terminate employees who test positive for marijuana.  The MMA provides no protections in this regard.

Given the new state of the law and the fact that there is currently no precedent interpreting the law in Pennsylvania, employers must ensure that their policies address the use of marijuana by employees.  In this regard, employers are recommended to have policies and procedures in place for drug testing and determining “reasonable suspicion” to test individuals deemed to be under the influence at work.  Additionally, while the use of medical marijuana is not a reasonable accommodation under the ADA, the Act makes it clear that an employer is not permitted to subject an employee to an adverse act solely for being a “medical marijuana” user.  As such, employers must be mindful to thoroughly document any and all reasons for an “adverse employment action.”

While the debate over the legalization of marijuana will likely continue to rage for the foreseeable future, what is clear is that for now, employers can still enforce their work rules regarding marijuana use and being under the influence at work.  In this regard, there can be no debate that if employees are permitted to be under the influence of marijuana while at work, an employer will be exposed to significant potential liability and adverse consequences beyond the snack machine being consistently empty.

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