Employer Rights and Limitations in Pennsylvania’s Medical Marijuana Law
Pennsylvania joins a long list of states that recently approved the use of medical marijuana for therapeutic purposes. In fact, Pennsylvania officially became the 24th state in the country to do so.
The main objective of this new law is to make marijuana available for people who have a serious medical condition. For employers, the new law has specific implications that should be adhered to. It is extremely important that employers understand what actions are considered acceptable or unacceptable under the new law.
For example, under the new Pennsylvania law it is unlawful for an employer to “discharge, threaten, refuse to hire, or otherwise discriminate or retaliate against an employee … solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.”
The law is set up to deter both employers and agents of the employer from violating this provision and is written in a way that provides the Department of Health with broad discretion in determining when a penalty should be assessed. Therefore, employers should pay very close attention to guidelines explaining boundaries in the immediate future.
Pennsylvania’s law does not limit the employer’s ability to discipline an employee who is found to be under the influence of medical marijuana or 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.”
Therefore, while the employer is not allowed to discriminate against an employee for qualifying for a medical marijuana card, it appears the legislature is not extending those protections to being under the influence of medical marijuana while on the job.
Currently, the commonwealth of Pennsylvania has not enacted laws restricting or regulating an employer’s right to mandate drug testing in the workplace. However, the employer is prohibited from drug testing if laws are violated that pertain to discrimination, defamation, and invasion of privacy.
For example, Pennsylvania transportation employees are required to undergo alcohol and drug testing as mandated by the U.S. Department of Transportation Federal Motor Carrier Safety Administration. The employer will still be held accountable for following federal laws as it relates to reporting certain usage of drugs, even when the marijuana was prescribed for medical purposes.
The Department of Transportation’s Drug and Alcohol Testing Regulation 49CFR Part 40, at 40.151(e), does not authorize “medical marijuana” under a state law to be a valid medical explanation for a transportation employee’s positive drug test result. In other words, it remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation’s drug-testing regulations to use marijuana.
Under Pennsylvania law, it is illegal to use medical marijuana in the workplace when performing dangerous activities. Employees who have more than 10 nanograms* per milliliter of THC in their blood in serum may not operate or be in physical control of chemicals that require a federal or state permit or high-voltage electricity or other public utility.
The employer can limit an employee from performing certain duties where a safety risk might be called into question, regardless of the potential financial harm to the patient. This will not be deemed an adverse employment decision for the employer.
Employers may prohibit patients who are employees from performing mining or any other “employment duties at heights or in confined spaces” while under the influence of marijuana.
Another important point for the employer to recognize is that this law does not require an employer to accommodate the use of medical marijuana on their premises or property. The law provides a path for the employer to reject providing accommodation for use of medical marijuana on their premises or property. Unfortunately, the law does not provide any guidance on accommodation if an employee wanted to use marijuana during working hours.
The law focuses on the “premises or property” of the employer. In short, the law does not permit employees to be under the influence or impaired by medical marijuana during the workday or while performing duties without the employer taking disciplinary action.
Without question, this area is going to be challenged by disabled employees being treated with marijuana for a medical condition. Also, because the standard for “under the influence” is not sufficiently addressed in the law, it will be quite difficult for an employer to demonstrate impairment.
There are already multiple lawsuits in other states addressing this issue. More guidance on this issue might be forthcoming after some of those lawsuits have been decided.
The law provides other limitations or restrictions that an employer should be knowledgeable about. It is important for an employer to review these limitations and restrictions and make necessary revisions to their employee handbooks regarding drugs in the workplace. In light of the new medical-marijuana law, revising the alcohol and drug-abuse policy is a good idea.
Employers might want to revisit some pre-employment screening guidelines to ensure employees are not being discriminated against with the drug-screening test. Consult with an attorney to review some of these guidelines in conjunction with reevaluating your employment guidelines. It is always better to be proactive in these matters.