Medical Marijuana Considerations For Pennsylvania Employers

On May 17, 2016, Pennsylvania's Medical Marijuana Act (the MMA) went into effect. Although it will take time for the administrative framework set out in the MMA to take shape, it is not too early for employers to start thinking about how the legalization of medical marijuana in Pennsylvania may impact the workplace. This article discusses some of the likely effects of the MMA. It also highlights some of the questions that the MMA raises for Pennsylvania employers, and provides some suggestions for things employers can do to adjust to this new law. Although there are sure to be new legal developments ahead in this area, employers should be aware of what the MMA is all about and what questions it has created.

A Very Brief Overview of the Medical Marijuana Act

The MMA provides for a system through which individuals suffering from one of 17 "serious medical conditions" (e.g., cancer, post-traumatic stress disorder, HIV/AIDS, epilepsy, and Parkinson's disease) can obtain and use medical marijuana for treatment. It governs the growth, processing and dispensing of medical marijuana to eligible individuals.

In order to obtain and use medical marijuana under the MMA, an individual with one of the enumerated medical conditions must have a certification from his or her health care provider. That individual, or his or her caregiver, must also have an identification card issued by the Pennsylvania Department of Public Health. Medical marijuana can only be dispensed in one of six specified forms: pill, oil, topical solution, a form appropriate for vaporization or nebulization, tincture or liquid. Smoking medical marijuana is expressly prohibited under the MMA.

The Medical Marijuana Act's Employment Provisions

There are provisions concerning employment in the MMA that Pennsylvania employers should be aware of. The substance of these provisions is as follows:

Discrimination against an employee certified to use medical marijuana is prohibited.
The MMA provides that no employer "may discharge, threaten, refuse to hire or otherwise discriminate or retaliate" against an employee solely on the basis of that employee's status as an individual who is certified to use medical marijuana. As a result, individuals certified to use medical marijuana are now somewhat of a protected class in Pennsylvania.

Employers need not allow the use of medical marijuana in the workplace.
The MMA states that an employer is not required to accommodate the use of medical marijuana "on the property or premises of any place of employment." In other words, employers do not have to permit their employees to use medical marijuana while at work.

Employers can discipline employees for being under the influence of medical marijuana in the workplace – in certain circumstances.
Under the MMA, an employer can discipline an employee for i) being under the influence of medical marijuana in the workplace, or ii) working while under the influence of medical marijuana "when the employee's conduct falls below the standard of care normally accepted for that position". Thus, it appears that in order to discipline an employee pursuant to this provision without running afoul of the MMA, the employee must both be under the influence of medical marijuana while at work and have his or her job performance fall below an accepted "standard of care." As discussed in more detail below, each of these components raises questions for employers.

Certain safety-sensitive duties and positions are specifically addressed.
The MMA provides that no one under the influence of medical marijuana may engage in the following:

  • Control of chemicals which require a permit issued by the federal or state government
  • The operation or control of high-voltage electricity or any other public utility
  • Employment duties at heights or in confined spaces, including mining

The MMA also permits employers to prohibit employees who are under the influence of medical marijuana from engaging in any task that an employer deems life-threatening to any employee of the employer or any duty which could result in a public health or safety risk.

The MMA does not require employers to violate federal law.
Nothing in the MMA requires an employer to do anything that would put it or any person acting on its behalf in violation of federal law. This means, at a minimum, that employers in industries subject to federal requirements that prohibit marijuana use, such as United States Department of Transportation requirements or the federal Drug Free Workplace Act, can continue to abide by and enforce those standards.

Unanswered Questions About the Medical Marijuana Act for Pennsylvania Employers

The MMA's employment-related provisions create several questions that, if not answered in forthcoming regulations promulgated pursuant to the Act, may have to be addressed in the courts. These include:

What does it mean to be "under the influence" and how does an employer prove this?
Multiple employment-related provisions in the MMA require that an employee be "under the influence" of medical marijuana in order to be subject to employment restrictions or discipline. It is not clear what, exactly, "under the influence" means in all circumstances, however. While the MMA does specify a permissible blood content for individuals handling chemicals or operating high-voltage electricity or other public utilities, the MMA does not apply this parameter to its other prohibitions on an employee being "under the influence." Practically speaking, an employer's observations alone will not conclusively establish that someone who appears to be impaired is under the influence of marijuana. Moreover, while most drug tests may show that marijuana was used sometime in the recent past, those tests will not show exactly when use occurred let alone establish that the employee was impaired at a particular point in time. Although employer observation of impairment, coupled with a drug test that comes up positive for marijuana, is more compelling evidence that an employee is (or was) "under the influence" as that term is commonly used, there is no clear definition of that phrase in the MMA. Additional guidance on this issue in the forthcoming regulations would be helpful. Absent that, look for this issue to be litigated.

What is the "standard of care" for a particular employee's position?
According to the MMA, conduct that falls below the standard of care for an employee's particular position is a prerequisite to discipline for being under the influence of medical marijuana while at work. What the standard of care is for a particular position is unclear. Anticipate this issue to be raised as a defense by employees facing discipline for being under the influence of medical marijuana while at work and expect litigation.

Does the MMA require employers to accommodate medical marijuana use outside of work?
The MMA clearly states that employers are not required to accommodate medical marijuana use on their premises. Whether an employee's medical marijuana use outside of work must be accommodated under the MMA is a different question. On one hand, a provision of the MMA prohibits discrimination solely on the grounds that an individual is certified to use medical marijuana; it says nothing about discrimination based on actual use. On the other hand, the MMA only expressly condones discipline for an employee's medical marijuana use when that employee is under the influence at work and performing below a certain "standard of care" for his or her job. The conditions that the MMA seems to place on an employer's ability to discipline an employee for medical marijuana use suggests that off-duty use might be permitted under the MMA provided an employee does not report to work under the influence and perform below the standard of care for his or her position. More explicit guidance on this question will be needed.

What about an accommodation under the Americans with Disabilities Act or Pennsylvania Human Relations Act?
The Americans with Disabilities Act (ADA) does not require employers to accommodate the current use of illegal drugs by their employees. Under the ADA, a drug is considered "illegal" if its possession and distribution is unlawful under the federal Controlled Substances Act (CSA). Despite the legalization of medical marijuana under Pennsylvania law, possession and distribution of marijuana remains unlawful under the CSA. Based on this alone, there is arguably no duty to accommodate medical marijuana use under the ADA. The few courts that have addressed the issue of accommodating medical marijuana use under the ADA in other states have generally adopted this line of reasoning.

There is, however, an exemption under the ADA for "use of a drug taken under the supervision of a licensed health care professional." This exemption could arguably cover medical marijuana prescribed by a physician pursuant to the MMA. Again, the handful of courts that have taken up this issue elsewhere have rejected similar arguments. As medical marijuana use becomes more prevalent throughout the country, however, additional developments in this area are sure to come.

Like the ADA, the Pennsylvania Human Relations Act (PHRA) also requires employers to provide reasonable accommodations to employees with disabilities. Courts often construe the PHRA in a manner similar to the ADA, although the PHRA does not contain provisions as robust as the federal law. The few courts that have evaluated whether state non-discrimination laws require medical marijuana use to be accommodated have generally answered this question in the negative. The PHRA itself has yet to be tested, however. Furthermore, when compared to medical marijuana laws in other states, the MMA arguably provides some considerable protections to employees. The answer to the question of whether the PHRA will be construed in a manner similar to the ADA when it comes to accommodating medical marijuana use is therefore unclear.

Regardless, one way attorneys representing employees may try to get around the ADA and PHRA accommodation issue is by claiming that an employer who refuses to accommodate medical marijuana use is discriminating against an employee's underlying serious medical condition, not the marijuana use itself. This raises an important point that is discussed in more detail below: An employee certified to use medical marijuana almost certainly has an underlying impairment that qualifies as a disability under the ADA and PHRA.

Seven Things Pennsylvania Employers Can Do Now

  1. If your business is subject to federal laws or regulations mandating a marijuana-free workplace, continue to abide by those requirements.
    The MMA does not require employers to violate federal law that prohibits marijuana use by employees.
  2. Do not ask applicants for employment if they are certified to use medical marijuana.
    Just like with other protected classes (age, disability, etc.), to lessen the likelihood of potential discrimination claims, employers should generally avoid asking current employees or applicants if they are certified to use medical marijuana.
  3. Make sure your EEO policies encompass those certified to use medical marijuana.
    At a minimum, the MMA prohibits employers from taking adverse employment action against an employee because he or she is certified to use medical marijuana. As a result, such individuals are now essentially in a protected class. Employers should address this, in one form or another, in their Equal Employment Opportunity policies.
  4. Use caution when dealing with employees who you know are certified to use medical marijuana – there may be disability discrimination implications.
    In addition to the fact that certification to use medical marijuana puts an employee in a protected class under the MMA, an employee who is certified to use medical marijuana under Pennsylvania law almost certainly has a disability that may entitle them to protection under the ADA and PHRA. In other words, if you know an employee is certified to use medical marijuana in Pennsylvania, that employee will have little trouble arguing that you also know he or she has a disability with regard to the medical condition qualifying them for medical marijuana. Thus, disciplining such an employee for being under the influence of medical marijuana at work could quickly turn into a disability discrimination claim. Employers should make sure that any discipline of an employee they know to be certified to use medical marijuana is supported by sufficient evidence of unacceptable job conduct to withstand potential scrutiny.
  5. Take a look at your job descriptions, particularly for safety sensitive positions.
    Under the MMA, disciplining an employee who is under the influence of medical marijuana requires that the employee be functioning below a "standard of care" for his or her position. Like it or not, this provision may create an easy avenue to litigation for an employee seeking to challenge such discipline. The employee's job description is probably germane to the issue of what the "standard of care" is for his or her position. A job description that is out of date or inaccurate will not help an employer's efforts to establish that the employee's conduct fell below the standard of care.Also, remember that the MMA allows employers to prohibit employees who are under the influence of medical marijuana from engaging in any task that an employer deems life-threatening to any employee of the employer, or any duty which could result in a public health or safety risk. It is apparent that some tasks and/or duties are potentially life threatening or pose a public health or safety risk (e.g., driving on roads or handling hazardous materials). Others may not be so clear-cut. Identifying such tasks in a job description could help an employer support the imposition of such restrictions if the need arises.
  6. Stay tuned for upcoming regulations.
    Temporary and permanent regulations will be issued to implement the provisions of the MMA. The Pennsylvania Department of Health must begin to issue temporary regulations by November 17, 2016. While these regulations may provide more information regarding the employment provisions discussed above, one would expect the Pennsylvania Department of Labor and Industry to weigh in on employment-related matters. If it does not, there is the potential that the employment provisions of the MMA may not be fully addressed in the temporary regulations. We will provide further updates when these regulations are issued.
  7. If faced with a medical marijuana-related employment issue, consult your employment lawyer.

As discussed above, this evolving area of employment law is new to Pennsylvania. Odds are you would rather focus on your business than spend time and money becoming one of the first employers in Pennsylvania to be on the losing end of an employment-related medical marijuana case. If you run across a medical marijuana issue with one of your employees, a call to your employment lawyer upfront could avoid an expensive headache down the road.

To schedule a consultation with a lawyer at Houston Harbaugh, P.C. call 412-281-5060.