In April 2016, Pennsylvania legalized medical marijuana, becoming the twenty-fourth state to do so. Although it has taken nearly two years for the Commonwealth’s regulatory system to be designed and implemented, medical marijuana is now readily available at a number of licensed dispensaries throughout the state. With tens of thousands of Pennsylvanians registered to become certified to use medical marijuana and more dispensaries set to open in the coming months, employers must be prepared to address new issues regarding medical marijuana in the workplace. This article will answer some of the most common questions that employers have asked in trying to navigate the haze of Pennsylvania’s Medical Marijuana Act (the “Act”).
- What Conditions Qualify an Employee for Medical Marijuana?
Under the Act, “medical marijuana” refers to marijuana obtained for certified medical use by a Pennsylvania resident with a “serious medical condition.” The Act provides an extensive list of qualifying “serious medical conditions,” including: ALS/Lou Gehrig’s disease, autism, cancer, Crohn’s disease, epilepsy, glaucoma, HIV/AIDS, Huntington’s disease, multiple sclerosis, Parkinson’s disease, post-traumatic stress disorder, sickle cell anemia, opioid abuse, or any terminal illness, neurodegenerative disease, or spinal cord damage.
- What Forms Can Medical Marijuana Take?
The Act limits “medical marijuana to the following forms: pills, oils, topical forms (e.g., gels, creams, or ointments), tinctures, liquids, or other forms appropriate for administration by vaporization or nebulization. Although dry leaves or whole plants are allowed for vaporization or nebulization, they cannot be smoked or used in edible form under the Act.
- Can Employees Use Medical Marijuana at Work?
No. The Act makes clear that employers are not required to accommodate the use of medical marijuana at work. The Act also allows an employer to discipline an employee for using medical marijuana at work or for working while under the influence of medical marijuana when his/her conduct falls below the standard of care normally accepted for that position. In addition, the Act provides that employers can prohibit employees from performing certain safety-sensitive tasks while under the influence of marijuana, such as operating or controlling certain chemicals or high-voltage electricity.
- What About the Americans With Disabilities Act?
Under the Americans with Disabilities Act (“ADA”), “qualified individuals with a disability” are generally entitled to reasonable accommodation in the workplace. However, a person who is currently engaging in the illegal use of drugs is not a “qualified individual with a disability” for ADA purposes. Although medical marijuana has been legalized in Pennsylvania (and a majority of states) and the possession of small amounts of marijuana has been decriminalized in several Pennsylvania municipalities, all forms of marijuana remain illegal under the federal Controlled Substance Act. Accordingly, Pennsylvania employers are not required to accommodate an employee’s use of medical marijuana under the ADA.
- What Employment Protections Does the Act Provide?
The Act prohibits employers from discharging, threatening, refusing to hire, discriminating against, or retaliating against an employee “solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.” As this provision has not yet been fully litigated in Pennsylvania’s state or federal courts, it remains to be seen just how much workplace protection the Act affords to Pennsylvania employees in practice.
- What Should We Do Next?
There are several key measures that an employer can take to ensure that its workplace remains both drug-free and legally compliant. As an initial matter, an employer should review, revise, and disseminate its policies and handbook to ensure that employees are clearly notified that testing positive for an illegal drug, including medical marijuana, is a policy violation that allows the employer to take adverse action to the fullest extent permitted by law. An employer should also discuss with its vendors about how positive marijuana tests will be addressed and reported. Most importantly, an employer must enforce its policies consistently among all employees and ensure that all adverse employment actions are supported by timely and thorough documentation. With the right knowledge and preparation, Pennsylvania employers can ensure that their efforts to comply with state and federal law don’t go up in smoke!
By: John Buckley, Esquire, Norris McLaughlin & Marcus, P.A.
