Pennsylvania legalized the prescription, sale, and use of medical marijuana in 2016, but due to the lengthy permitting and site selection process for grower/processors and dispensaries, medical marijuana has not seen widespread sale or use in Pennsylvania at this time. On June 29, 2017, the Pennsylvania Department of Health announced the names of the 27 companies permitted to sell medical marijuana in Pennsylvania. It is possible, if not probable, that many of these companies will be offering medical marijuana products by early 2018. Now is the time for employers to review employee handbooks and company policies to avoid violating provisions of the Pennsylvania Medical Marijuana Law while ensuring a safe, productive, and professional work environment.
The Medical Marijuana Act (“Act”) prohibits employers from discriminating against an employee solely due to the employee’s status as an individual who is permitted to use medical marijuana. Essentially, if an employer becomes aware that an employee or potential employee holds an ID card that permits him or her to purchase medical marijuana, the employer cannot take adverse action against the employee or potential employee on that basis. To avoid running afoul of this rule, employers should avoid inquiring about whether an employee holds such an ID card – but if an employee self-identifies as a medical marijuana patient, the employer will likely learn about this status. To avoid potential discrimination claims, employers should have clear policies regarding drug use and testing in the workplace.
Zero-tolerance drug policies are still permitted under the Act. Even employees who hold the proper ID card to obtain medical marijuana can be prohibited from using medical marijuana at work. Further, employers are not required to accommodate any medical marijuana impairment occurring due to an employee’s use of medical marijuana products before his or her shift began. However, drug testing should be conducted based on an established policy to avoid claims that a medical marijuana-eligible employee is being unlawfully targeted for his or her status as a medical marijuana patient. For example, a policy may describe certain behaviors or symptoms of impairment that may be cited as a basis for drug testing. Employers should also familiarize themselves with the limits of drug testing in terms of accurately identifying when an employee is under the influence of marijuana – a positive drug test may not necessarily mean that an employee was impaired while on the job.
The Act recognizes that certain occupations face drug-testing requirements imposed by federal law. If this applies to your industry, you must follow the federal law regardless of the provisions of the Act. The Act also identifies several potentially hazardous activities that may not be performed by medical marijuana patients, such as mining, working with high-voltage electricity, and working with certain chemicals. More broadly, the Act gives employers the right to bar medical marijuana patient-employees from any tasks the employer considers life threatening, and barring employees from such tasks will not be considered discrimination even if this results in reduced compensation to the employee. Employers should thoroughly review individual job descriptions and the actual day-to-day activities of different positions so that they avoid unnecessary liability for having medical marijuana-eligible employees in life-threatening jobs. The Act gives employers significant discretion in this regard, and it would be wise to take advantage of this discretion to mitigate claims by both third parties and the employee if accidents occur.
Pennsylvania’s medical marijuana law likely won’t require employers to completely overhaul existing drug use and testing policies; however, the limited protections the law offers employees, and the increased likelihood that at least some employees may be under the influence of marijuana while at work, warrant a review of current policies to avoid unlawful discrimination and ensure that the company, its employees, and its customers are protected. Conducting this review now will ensure that employers are ahead of the curve when medical marijuana sales begin across the state next year.