United States: Navigating Pennsylvania's New Medical Marijuana Act: What Employers Need To Know

On April 17, 2016, Pennsylvania Governor Tom Wolf signed the Medical Marijuana Act ("the Act") into law. The Act, which takes effect on May 17, 2016, legalizes the use and possession of medical marijuana under specified circumstances and provides for a comprehensive program of registration, prescription, dispensing and permitted use of medical marijuana.

The Act limits the lawful use of medical marijuana to those individuals with a "serious medical condition." Included among the list of medical conditions that meet the definition of "serious medical condition" are cancer, HIV, Parkinson's disease, multiple sclerosis, epilepsy, post-traumatic stress disorder and sickle cell anemia.

Many Pennsylvania employers currently enforce substance abuse policies that limit employee use, possession or distribution of illegal drugs in the workplace. Fortunately, the Act contains a number of provisions that retain the rights of employers to maintain a drug-free workplace even as it respects the rights of certified medical marijuana users.

Non-Discrimination

The Act contains a non-discrimination provision prohibiting employers from discharging, threatening, refusing to hire, or otherwise discriminating or retaliating against an employee with respect to the employee's compensation, terms, conditions, location or privileges of employment solely based on an employee's status as a certified medical marijuana user.

Although the term "applicant" is absent from the statutory language, the reference to "refuse to hire" indicates that employers are prohibited from disqualifying an applicant for employment solely based on the applicant's status as a certified medical marijuana user. What remains uncertain under the Act, however, is the extent to which an applicant who is a certified medical marijuana user may be disqualified from a position because the applicant fails a pre-employment drug test, or whether an employee may be denied a promotion, job transfer or otherwise disciplined due to failing a random drug test. The point that needs to be clarified is whether, under either of these two scenarios, it could be argued that any adverse action is solely based on an employee's status as a certified medical marijuana user.

Situations Where Disciplinary Action Is Permitted

Notably, the Act provides several exceptions to the non-discrimination prohibition that acknowledge an employer's right to take action against an employee consistent with provisions typically contained within an employer's substance abuse policy:

  • Employers are not required to accommodate an employee's actual use of medical marijuana "on the property or premises of any place of employment." Thus, an employee may be disciplined for using marijuana while on the property or premises of the employee's place of employment.
  • Employers may still discipline an employee for being under the influence of medical marijuana "in the workplace."
  • Employers may still discipline an employee 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."
  • Employers are not required to commit any act that would put the employer, or any person acting on its behalf, in violation of federal law. For example, this provision would presumably permit an employer to discipline or otherwise take action against an employee who failed to comply with United States Department of Transportation's requirements related to substance use.
  • Individuals are also prohibited from performing any task under the influence of medical marijuana where doing so would constitute negligence, professional malpractice or professional misconduct.
  • The Act also focuses on the safety concerns associated with medical marijuana use by Pennsylvania residents who are certified medical marijuana users:

    • Such individuals may not operate or be in physical control of chemicals that require a permit issued by the federal government or a state government or their respective agency, or high-voltage electricity or any other public utility while under the influence (defined as a blood content of more than 10 nanograms of active tetrahydrocannabis per milliliter of blood in serum).
    • Such individuals are prohibited from performing the following duties while under the influence of medical marijuana: (1) working at heights or in confined spaces, (2) performing any task that an employer deems life-threatening to the user or to other employees or (3) performing any duty that could result in a public health or safety risk. With respect to the latter two circumstances, employers may take adverse employment action against users even if that action results in financial harm to the user.

These provisions confirm key employer rights with respect to limiting drug use in the workplace. However, in light of the absence of definitions for key terms, such as "workplace," "property or premises of any place of employment," "under the influence" and "standard of care," the breadth of these provisions will likely be tested in the courts. Anticipated regulations, due on or before November 17, 2016, may shed light on the scope of these terms.

What This Means for Employers

Pennsylvania employers should review their drug and alcohol policies and practices to ensure compliance with the Pennsylvania Medical Marijuana Act.

  • With respect to hiring practices, employers may want to ensure that they do not impose a blanket prohibition on hiring anyone who is a certified medical marijuana user.
  • Employer drug-testing practices and response to positive test results should be evaluated in light of the Act. Although not specifically addressed in the Act, presumably, an employer would likely have a stronger position to take adverse action based on the positive results of a drug test conducted when an employer has reasonable suspicion that an employee is unfit for duty as compared to a random drug test. Any adverse action taken by an employer may also be more defensible when the employer can show that the employee's conduct fell below an acceptable standard of care.
  • Employers should also be sensitive to the interplay with the Americans with Disabilities Act (ADA), as many certified medical marijuana users will have an underlying disability. The risk of an ADA discrimination claim is heightened where an employer asks inappropriate questions about an individual's disability or makes decisions based on the individual's disability, as opposed to based on the individual's violation of a conduct standard or impermissible use of medical marijuana while at work.
  • Where an employer seeks to base its decision on a federal law that prohibits an employer from hiring an applicant or retaining an employee who tests positive for drugs, such as marijuana, the federal law should preempt the state law. However, before relying on such provisions, employers should look at what the federal law actually mandates.
  • If operating in multiple jurisdictions, employers should consider other state law distinctions on issues, such as whether certified medical marijuana users are protected from adverse employment action, whether employers must provide accommodations for employees who are working under the influence of medical marijuana and the interrelation between the state medical marijuana law and any state drug testing law.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.