With Pennsylvania legalizing the use of marijuana for medical purposes, a paramount question is: How does Medical Marijuana impact your job in Pennsylvania?
In Pennsylvania, the Medical Marijuana Act (MMA) was passed in May 2016. This Act legalized marijuana for medical use only, not recreational use. The MMA established strict requirements and controls for approval to use medical marijuana. To obtain permission to use medical marijuana in Pennsylvania, individuals must:
1. Receive a recommendation from a personal physician.
2. Register with and obtain approval from the Pennsylvania Department of Health.
3. Receive a medical marijuana identification card.
4. Only obtain medical marijuana from a state-approved medical marijuana dispensary.
To qualify for approval to use medical marijuana, individuals must be diagnosed, via a physician’s certification, with a “serious medical condition.” The MMA lists which “serious medical conditions” qualify. Examples of some qualifying “serious medical conditions” are:
- Amyotrophic lateral sclerosis;
- Anxiety disorders;
- Cancer, including remission therapy;
- Crohn’s disease;
- Damage to the nervous tissue of the central nervous system (brain-spinal cord) with objective neurological indication of intractable spasticity, and other associated neuropathies;
- Dyskinetic and spastic movement disorders;
- HIV / AIDS;
- Huntington’s disease;
- Inflammatory bowel disease;
- Intractable seizures;
- Multiple sclerosis;
- Neurodegenerative diseases;
- Opioid use disorder for which conventional therapeutic interventions are contraindicated or ineffective, or for which adjunctive therapy is indicated in combination with primary therapeutic interventions;
- Parkinson’s disease;
- Post-traumatic stress disorder;
- Severe chronic or intractable pain of neuropathic origin or severe chronic or intractable pain;
- Sickle cell anemia;
- Terminal illness; and
- Tourette syndrome.
Medical marijuana dispensaries may only dispense medical marijuana in specific forms to those with the proper identification cards. The smoking of marijuana is not permitted under the MMA, however, it may be vaporized; it is also permitted in the form of pills, liquids, gels, and creams is permitted. It cannot be dispensed or used via infusion into drinks or food.
Other restrictions and limitations are:
- Medical Marijuana is not covered by health insurance;
- You cannot drive or operate heavy machines or equipment under the influence of Medical Marijuana; and
- Medical Marijuana cannot be possessed or used on a school bus or school grounds (A Safe Harbor Letter protocol has been put in place for students legally using medical marijuana for a “serious medical condition.” It allows parents/guardians/caregivers to arrange times to go to their child’s school to administer the medical marijuana in a secure and private location, and then immediately leave school grounds removing any excess medical marijuana)
HOW DOES MEDICAL MARIJUANA IMPACT THE WORKPLACE IN PA?
Federal Employers and Federally Regulated Private Employers
Despite Pennsylvania State Law legalizing marijuana for medical use, any use, possession, sale, or manufacturing of marijuana continues to be illegal under Federal Law. Therefore, it is illegal to possess, use, or be under the influence of medical marijuana when working for a federal employer within Pennsylvania, or any employer subject to federally mandated drug-free workplace programs, including CDL drivers. Federal contractors must abide by federal rules by reporting all positive drug tests for marijuana; and by prohibiting and not accommodating marijuana use by employees. Federal employers and private employers required to abide by federal laws may be able to refuse employment or terminate employees based on medical marijuana use as part of that compliance. This includes positive drug tests at any stage of employment including pre-employment, even if used legally under Pennsylvania’s MMA. Simply, the federal government as an employer and employers subject to the rules and regulations of the federal government do not have to comply with Pennsylvania’s Medical Marijuana Act.
There is uncertainty as to how private employers in PA can run their businesses safely and effectively while complying with the MMA. Private employers must abide by and comply with Pennsylvania’s Medical Marijuana Act and any sections pertaining to employment discrimination and accommodations. Additionally, since medical marijuana only applies to certain “serious medical conditions,” there may be overlapping between the Americans with Disabilities Amended Act and Pennsylvania’s Medical Marijuana Act.
The MMA does not limit an employer’s ability to discipline employees for:
- Being under the influence of medical marijuana in the workplace;
- Using or possessing medical marijuana in the workplace; or
- Working while under the influence of medical marijuana when the employee’s conduct falls below the generally accepted standard for his/her position.
Private employers and employees must understand what constitutes “under the influence” of marijuana per the MMA. If one has a blood content of more than 10 nanograms of active THC (marijuana) per milliliter of blood serum, he/she is considered “under the influence.” Therefore, when conducting drug testing, employers must ensure they are conducting the correct type of testing and blood/urine analysis, as well as using a qualified and reputable vendor for drug testing.
The MMA forbids private employers from taking adverse actions against an employee based on the employee’s status as a medical marijuana cardholder. Private employers cannot discharge, threaten, refuse to hire, or otherwise discriminate or retaliate against an employee based on the employee’s status as an individual who is certified to use medical marijuana.
The MMA does protect private employers by allowing them to prohibit employees from working in certain jobs while using medical marijuana. Examples are:
- Working with Chemicals which require a permit issued by the Federal Government
- Working with high voltage electricity or other public utility
- Working at heights or in confined spaces including mining
- Performing a task that the employer deems life-threatening to employees or others
- Performing any duty that could result in a public health or safety risk
These regulations may cover jobs where part of an employee’s job duty is driving (a personal or company vehicle) as that could pose a risk to the public and others, as well as violate Pennsylvania’s Driving Under the Influence laws.
The MMA does not require private employers to accommodate an employee’s use of medical marijuana; however, a private employer may be required to make an accommodation of the employee’s “serious medical condition” under the ADAA. Therefore, even if an employer’s adverse treatment against an employee is permitted under the MMA, the private employer’s actions may be in violation of the ADAA.
If you are a Pennsylvania worker legally using medical marijuana per the MMA, it is important to understand the permitted and prohibited uses of medical marijuana in the Pennsylvania workplace, and your rights regarding a Pennsylvania employer’s action against you pertaining to the legal use of medical marijuana.
For Pennsylvania employers, it is important to understand the same permissions and prohibitions under the MMA. It is also important to take action to clearly address the legal use of medical marijuana in the workplace via the employer’s written employee handbook.
As an employee certified to use or considering becoming certified to use Medical Marijuana in Pennsylvania, you should consult with a trusted and experienced Employment Law Attorney versed in the area of Pennsylvania’s Medical Marijuana Law.
If you are a Pennsylvania employer dealing with an employee certified to use Medical Marijuana in Pennsylvania or wish to be prepared if the situation arises or needs to be addressed in your employee handbook, you should consult with a trusted and experienced Employment Law Attorney versed in the area of Pennsylvania’s Medical Marijuana Law and Best Human Resources Practices.