Clearing the Smoke – What Employers Need to Know about Pennsylvania’s New Medical Marijuana Act

May 10, 2016

Background on the Act

On April 17, 2016, Pennsylvania Governor Tom Wolf signed Senate Bill 3, known as the Medical Marijuana Act, into law making Pennsylvania the 24th state to legalize the medical use of marijuana.

The Act, which will take effect May 17, 2016, legalizes the prescription and use of marijuana for persons with a “serious medical condition” in Pennsylvania.  Serious conditions have been defined by the Act to include: cancer, HIV/AIDS, ALS, Parkinson’s disease, multiple sclerosis, nerve damage, epilepsy, inflammatory bowel disease, neuropathies, Huntington’s disease, Crohn’s disease, post-traumatic stress disorder, intractable seizures, glaucoma, sickle cell anemia, chronic pain and Autism.

Employment Considerations

There are several key components in the Act that employers should be aware of.

 1.      An employer may not discriminate against an employee certified to use medical marijuana. 

This means that Pennsylvania employers may be liable for taking adverse employment actions against individuals certified to use medical marijuana, or from refusing to hire an individual on that basis.  The Act is silent, however, as to whether it affords protection to individuals certified outside of Pennsylvania to use medical marijuana.

2.      Nothing in the Act, however, requires an employer to accommodate the use of medical marijuana in the workplace.

Given the requirement of having a “serious medical condition,” individuals certified to use medical marijuana would likely also be covered under the Americans with Disabilities Act (“ADA”).  While employers do not need to accommodate the use of medical marijuana at work, employers may need to give certain consideration to appropriate accommodations under the ADA for persons authorized to use medical marijuana.

3.      The Act in no way limits an employer’s ability to discipline an employee for being under the influence of medical marijuana in the workplace or for working under the influence of medical marijuana if the employee’s conduct falls below the standard of care.

While protecting a patient from discrimination, the Act does not protect a patient under the influence of marijuana during the work day, or who does not perform up to the standards of the job.   Interpreting what constitutes “under the influence” and the “standard of care” of the position, will likely be hotly debated topics.

 4.      Nothing in the Act requires an employer to violate Federal law[1].  

For example, an employer would not be required to accommodate use of medical marijuana if such accommodation violates federal Department of Transportation regulations.

Safety Concerns

The Act does recognize concerns employers may face where their employees are performing safety-related tasks.  The Act prohibits individuals under the influence of marijuana from: (1) operating or being in control of chemicals which require a permit; (2) operating or being in control of high-voltage electricity or any other public utility; (3) performing duties at heights or in confined spaces; (3) performing any task the employer deems life-threatening to the employee or others; and (4) performing any duty which could result in a public health safety risk.

Additional Questions/Considerations

While the Act defines “under the influence” as having a blood alcohol content or more than 10 nanograms of marijuana per milliliter of blood in serum for purposes of the prohibitions against operating or controlling chemicals and electricity, the Act is silent as to the interpretation of “under the influence” for the remaining prohibitions.  This will likely be an area of debate.

Additional concerns could also arise for example, where someone has less than 10 nanograms of marijuana in their system, but appears impaired and under the influence.  Testing methods could also create additional issues.  For example, employers commonly test for drugs with urine tests.  The active ingredient in marijuana can show on a urine drug test days and even weeks after use resulting in a positive test.  A positive test reading may be a far from accurate indicator of whether someone is under the influence.  The Act provides little guidance on how to handle these issues.

It is important to note that the Act prohibits the use of marijuana in plant form, from being smoked, or ingested in edible form.  Possession of marijuana in those forms is still illegal, and as a result an employer may freely discipline an employee for possessing marijuana in such forms.

While there are many questions left unanswered by the Act, we expect to see additional developments in the upcoming months.  The Department of Health is expected to issue temporary regulations within 6 months of the Act taking effect, and must issue full regulations within 18 months of that date.   SMGG will continue to keep itself apprised of all developments in this area.

SMGG intends to stay at the forefront of legal developments in this area.  If you have questions about the law,  please contact Erica L. Laughlin and David L. Pollack, of Strassburger McKenna Gutnick & Gefsky, at elaughlin@smgglaw.com, dpollack@smgglaw.com or (412) 281-5423.

[1] Currently the federal government classifies marijuana as a Schedule 1 drug, meaning it’s perceived to have no medical value and a high potential for abuse.  Marijuana is still illegal under federal law, even in states that legalize it.  Despite federal prohibition, there has been a more relaxed approach to marijuana violations.  Mounting criticism of the federal government’s classification of marijuana, and its inconsistency with the growing number of states that have legalized medical marijuana have sparked wide spread demands for change.