Update – Medical Marijuana in the Pennsylvania Workplace
The Pennsylvania Medical Marijuana Act, also known as Act 16, is almost 4 years old. Two years ago, Pennsylvania’s first medical marijuana dispensary opened, and now, with more than 60 dispensaries open across the commonwealth, medical marijuana is readily accessible to Pennsylvanians who wish to use it.
Since its passage, Act 16 has sent ripples of uncertainty and confusion into human resources offices across the state. When the act first passed, there weren’t many answers to employers’ frequently asked questions. Four years later, while there remains a lot of uncertainty, we also have much more guidance.
So, here’s what we know now:
1. Medical marijuana patients are likely protected by state disability discrimination laws.
The serious health conditions for which patients may use medical marijuana have one thing in common: They are disabilities. Accordingly, it logically would follow that those using medical marijuana to treat a disability would be protected from disability discrimination.
However, the Americans with Disabilities Act does not protect medical marijuana users because they are not qualified individuals with a disability. Individuals currently engaging in the use of illegal drugs are not qualified individuals. Notably, because the ADA is a federal law and because marijuana is illegal under federal law, an individual using medical marijuana is not protected by the ADA.
In 2017, however, the Massachusetts Supreme Court held that an individual legally using medical marijuana in accordance with state law would be protected from disability discrimination under the state law equivalent to the ADA. See Barbuto v. Advantage Sales and Marketing (Supreme Ct. Mass, July 2017).
In the Barbuto case, the plaintiff told her prospective employer that she would fail a pre-employment drug test because she used medical marijuana and asked for accommodation — that the employer waive its policy of barring anyone from employment who tests positive for marijuana.
The court found that such accommodation was facially reasonable, and where the employer did not engage in the interactive process to evaluate the reasonableness of the requested accommodation, it violated Massachusetts state disability discrimination laws.
Courts in other states, including Delaware and New Jersey, have followed the Barbuto reasoning, making it clear that failure to engage in interactive processes with employees who disclose use of medical marijuana exposes the employer to a claim for disability discrimination under state law.
Though no court in Pennsylvania has weighed in on this question, it is reasonable to predict that a Pennsylvania court will follow the trend.
Therefore, employers in Pennsylvania are cautioned to treat medical marijuana users as individuals with disabilities and to engage in the familiar interactive process with these individuals to determine whether their use of medical marijuana can be accommodated.
2. Act 16 contains an employment anti-discrimination provision for which an employee may assert a cause of action in state court.
Act 16 contains an anti-discrimination provision that states: “No employer may discharge, threaten, refuse to hire, or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location, or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana” (Section 2103(b)(1)).
Since the passage of Act 16, employers have wondered how this provision would be enforced. In November, a judge in Lackawanna County stopped the wondering.
In Palmiter v. Commonwealth Health Systems, Docket No. 19-CV-1315 (Lackawanna Cty. C.C.P. 2019), Judge Terrance Nealon ruled that the plaintiff could proceed with her lawsuit alleging discrimination by her employer in violation of Section 2103.
In doing so, Nealon rejected arguments by the defendant that Act 16 did not create a private right of action and that section 2103 should be enforced through fines issued by the Department of Health.
Nealon’s decision echoed those of courts in Rhode Island, Delaware, and Connecticut and effectively created a new protected classification under Pennsylvania Law — “certification to use medical marijuana.”
Considering this decision, certified users in Pennsylvania who believe they were the victim of discrimination can file a claim in the Court of Common Pleas. There is no requirement that the plaintiff exhausts administrative remedies or takes other steps to adjudicate the claim before filing into court.
Further, although the court has not yet weighed in on this question, it appears that the plaintiff will be able to seek the usual damages available for discrimination claims — back pay, front pay, and certain compensatory damages.
Employers should take care to ensure their drug-testing policies do not single out those who are certified users of medical marijuana. Treating medical marijuana like a prescription medication and treating certified users similarly to those taking prescription opiates, for example, is recommended.
3. Use of medical marijuana is probably not a “legitimate medical reason” for testing positive for marijuana on a drug test; thus, the test will be deemed positive.
Before a drug test is verified as positive, a medical review officer (MRO) must first ask the individual whether he/she has a legitimate medical reason for testing positive. For example, use of prescription Adderall is a legitimate medical reason for testing positive for amphetamines. Does this same rationale apply to medical marijuana users?
It does not. In 2017 the U.S. Department of Transportation, in its “Medical Marijuana Notice,” stated in no uncertain terms that “the Department of Transportation’s Drug and Alcohol Testing Regulation — 49 CFR 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.”
Notably, because most MROs follow DOT regulations and guidelines for drug testing, regardless of whether the testing subject is or is not a transportation employee, the DOT’s memo has broad implications.
Accordingly, even where an individual is legally using medical marijuana under state law, the MRO is likely to verify that individual’s drug test as positive for marijuana. It will then be up to the employer to verify valid certification and, in accordance with sections one and two above, to discuss reasonable accommodations with the employee and ensure there is no discrimination.
4. Employers do not have to accommodate use at work, can prohibit employees from performing safety-sensitive jobs while under the influence of medical marijuana, and can discipline employees for working while under the influence of medical marijuana.
So, you’re an employer and you’re now thinking to yourself: “OK, I have to engage in the interactive process with employees who are using medical marijuana, and I can’t discriminate against an employee who is certified to use medical marijuana, but do I have any rights to prohibit the use of medical marijuana in my workplace?” Yes!
Section 2103(b)(2) provides that “nothing in this act shall require an employer to make any accommodation of the use of medical marijuana on the property or premises of any place of employment.” Hence, an employer can prohibit employees from using medical marijuana while on the employer’s property, on jobsites, and in employer-provided vehicles.
Said another way, allowing an employee to use medical marijuana while at work is simply not a reasonable accommodation.
Act 16 also allows employers to prohibit employees from performing certain safety-sensitive jobs while under the influence of medical marijuana and to discipline employees for being under the influence of medical marijuana in the workplace.
Regarding safety-sensitive positions, Section 510 of Act 16 provides that employees may not operate or be in physical control of chemicals requiring a permit or high-voltage electricity or other public utility while under the influence of medical marijuana.
Employees may not perform any duties at heights or in confined spaces while under the influence of medical marijuana.
Additionally, employers may prohibit employees from performing any task that the employer deems life threatening and from performing any duty that could result in a public health or safety risk while under the influence of medical marijuana.
Regarding these two catchall provisions, employers are cautioned to be proactive in determining which jobs or duties may be life threatening or could result in a public health or safety risk.
Being proactive in this analysis and identifying safety-sensitive jobs ahead of any issues should help to avoid the appearance of and claims for discriminatory treatment.
5. A positive drug test, by itself, it likely not enough to demonstrate that an employee is under the influence of medical marijuana.
Unfortunately for employers, the bad news is that there is no easy way to determine whether an employee is under the influence of medical marijuana. As most of us know, marijuana metabolites can stay in the body for several days/weeks after the actual use of marijuana.
Accordingly, a positive drug test does not necessarily mean that the individual was under the influence of marijuana at the time of the test.
Further, regular use of medical marijuana, for example, by someone who is using medicinally will likely cause a positive drug test every time the individual is tested. Fittingly, several courts have now held that a positive drug test will not, by itself, be enough to demonstrate that an employee was under the influence of medical marijuana.
Courts in Delaware, New Jersey, and Arizona have all held that, absent other evidence that the employee was under the influence at the time of the test, a positive drug test will not be enough to demonstrate that an employee was actually under the influence of medical marijuana.
In the New Jersey case (Wild v. Carriage Funeral Holdings (Supreme Ct. NJ, 2019)), the employee, whom the employer knew was using medical marijuana to treat the side effects of chemotherapy, was tested after a work-related motor vehicle accident, despite the fact that the employee was not at fault for the accident — the other driver ran a stop sign — and the emergency room doctor opined that the employee was not under the influence of marijuana upon admission to the hospital.
Consequently, when the employer disciplined the employee because the test was positive for marijuana, the employee sued. Siding with the employee, the court found that there was no evidence that the employee was under the influence at the time of the accident and that the employee could proceed with a claim for disability discrimination under New Jersey state law.
Additionally, a federal court in Arizona recently held that even where the levels of marijuana present on a drug test are exceedingly high, an employer may not rely solely on the test to demonstrate that the employee was under the influence of medical marijuana.
In Whitmire Wal-Mart Stores, Inc. (Dist. Arizona, 2019), the court noted that proving impairment based on a positive drug test is a scientific matter and is not a determination that can be made by an HR director.
Employers are cautioned that unless they have reasonable suspicion to believe an employee was under the influence at work, they should not discipline based solely on a positive test.
Employers should ensure that their drug-testing policies allow testing based on reasonable suspicion, and management should undergo reasonable-suspicion training. Such training will teach managers to recognize the signs of drug use and resulting impairment and will provide education on best practices for observing, documenting, and obtaining second opinions regarding reasonable suspicion.
Ensuring that management enforces a reasonable-suspicion policy fairly will help employers avoid, or at the very least, defend claims of discrimination.
If you’re an employer who has not yet considered the impact of medical marijuana on your workplace, there is no time like the present. Your drug-testing policy should be reviewed and updated. You should review your job descriptions to determine which positions/duties, if any, qualify as safety sensitive under the provisions of Section 501.
Management should undergo reasonable-suspicion training, and you should ensure that your drug-testing policy allows for testing based on reasonable suspicion.
Finally, do not go it alone. The law regarding medical marijuana use by employees is complicated, complex, and ever changing. You should not hesitate to reach out to your employment counsel for guidance.
Denise Elliott is an attorney in the Labor and Employment Practice Group at McNees Wallace & Nurick LLC. She focuses her practice on defending self-insured employers in workers’ compensation matters, representing clients in employment discrimination litigation, and counseling employers regarding drug testing and workplace safety. firstname.lastname@example.org