Workplace Drug Testing and Pennsylvania’s Medical Marijuana Act

Pennsylvania employers and small businesses should keep a close eye on a recent federal suit filed against Amazon by a former employee under Pennsylvania’s Medical Marijuana Act (MMA).  Miller, a former picker for Amazon’s warehouse in Carlisle, Pennsylvania, claims he was terminated for failing a drug test although he was a licensed medical marijuana user in violation of the Medical Marijuana Act.  The MMA prohibits an employer from terminating, discriminating, or retaliating against an employee solely on the basis of an employee’s status as an individual who is certified to use medical marijuana.  The court’s analysis of Miller’s claims could provide much-needed guidance for employers who often face practical difficulties balancing the blanket employee protections under MMA with other federal and state regulations.

Although the Medical Marijuana Act was passed in 2016, its employment provisions have remained largely untested in court.  The lack of caselaw can be attributed to the text of the Act itself.  The MMA does not expressly allow certified medical marijuana users to sue their employers in court if they believe that they have been subject to discrimination.  However, for the first time in November 2019, a Pennsylvania court found an implied private cause of action in Palmiter v. Commonwealth Health Systems, allowing a medical marijuana user to sue an employer for wrongful termination in state court rather than bring the allegations to the Department of Health after being fired for failing a drug test.

What is clear from the text of the MMA is that an employer does not have to accommodate the use of medical marijuana on the premises of any place of employment.  But where does that leave employers whose employees lawfully use medical cannabis off premises, but subsequently fail a routine drug screening mandated by workplace policy?  After all, in Miller’s and Palmiter’s cases both employees had not used the medical marijuana on company time or property.  This presents a dilemma for employers not apparently considered by the legislature in its drafting of the MMA.

Another recent Pennsylvania case in this area provides insight on how Miller’s case may be decided. In October 2020, the Commonwealth Court published a decision interpreting the MMA and the Pennsylvania Human Relations Act (PHRA). In HACC v. PHRC, a student in the nursing program at Harrisburg Area Community College (HACC) sought accommodations to take medical marijuana even though the program administered annual drug screenings to all students.[1] When HACC informed the student that she must comply with the drug policy to continue in the nursing program, she filed suit.

Even though this case did not arise in an employment setting, the Court discussed how if HACC were an “employer” in the situation it still would not be required to accommodate in this manner under the MMA. First, the MMA provides that employees cannot be discriminated against due to their status as certified users of medical marijuana but does not require an employer to accommodate usage. An employer also retains the rights to discipline an employee for being under the influence in the workplace or for falling below standards of normal care while under the influence of medical marijuana. Finally, the court noted that under the MMA an employer is not required to make any accommodation or commit any act that would put itself or anyone acting on its behalf in violation of federal law, as marijuana remains a Schedule I controlled substance.

While the issue was determined on other grounds in favor of HACC, if the same circumstances arose in an employment relationship setting, the Commonwealth Court has signaled the same outcome would apply. Yet, Pennsylvania employers should proceed with caution applying zero-tolerance drug policies to medical marijuana as the caselaw continues to develop and to avoid discrimination against certified users. While the scope of MMA protections for Pennsylvania employees is rapidly developing in federal and state courts, employers should review and update drug screening policies and accommodation procedures keeping close watch on the caselaw to come in 2021.   

Employment Law attorneys at Nauman Smith can advise business owners how to best navigate this topic and other discrimination challenges as they arise.

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