Employers Wrestle with Pennsylvania’s New Medical Marijuana Act

Pennsylvania has joined the 23 states plus the District of Columbia that allow or soon will allow certain individuals to use medical marijuana. While the Medical Marijuana Act (the “Act”) will not be fully implemented for 18 months or more, it will pose a number of challenges for employers. It is therefore critical that employers understand the law and what it means for them.

First, it is important to understand that the Act does not allow anyone to smoke pot, regardless of one’s medical condition. Rather, medical marijuana can be dispensed only in forms such as pills, creams, oils, liquids, tinctures, and forms that can be vaporized.  Additionally, the act allows medical marijuana to be used only in connection with a limited number of specifically enumerated conditions.

While the Act does not contain many employment-related provisions, those which are included are significant, and can be broken down into provisions regarding the employment relationship in general and those regarding employers’ ability to prohibit medical marijuana patients from performing certain tasks.

Employment Protections, Provisions Regarding the Employment Relationship

The Act prohibits employers from discriminating or retaliating against an employee “solely” because the employee is certified to use medical marijuana. The word “solely” is significant, as it should allow employers who have adopted zero-tolerance policies to continue to adhere to them.  Further, the Act does not require employers to allow employees to use medical marijuana at work.  That means employers in Pennsylvania are still permitted to prohibit possession use of marijuana at work.

The act permits employers to discipline employees who are under the influence of medical marijuana at work, even if they administered the substance elsewhere, if “the employee’s conduct falls below the standard of care normally accepted for that position.” It remains to be seen how courts will apply that caveat.

Finally, the act makes clear that no employer is required do anything that would violate federal law. This carve-out protects businesses operating under federal drug testing mandates.

Task/Duty-Specific Provisions

The Act outlines several activities that a person may not perform while using medical marijuana. Specifically, it states that a person may not “operate or be in physical control” of certain regulated chemicals, high-voltage electricity or any other public utility while under the influence “with a blood content of more than 10 nanograms of active tetrahydrocannabis per milliliter of blood in serum.” The rub here is that an employer will not know whether an employee has reached the 10 nanogram threshold absent a drug test.

The Act further provides that a patient may not perform any employment duties at heights or in confined spaces while under the influence of medical marijuana, but does not make clear what constitutes “at heights” or “confined spaces,” nor does it specify whether the 10 nanogram “under the influence” standard applies to this prohibition.

Additionally, the Act allows employers to prohibit an employee who is under the influence of medical marijuana from “performing any task which the employer deems life-threatening” to either the employee him/herself or other employees. Similarly, the Act allows employers to prohibit employees under the influence of medical marijuana from “performing any duty which could result in a public health or safety risk.”

Employer Takeaways

Implementing regulations for the new law are expected in mid-November 2017, which hopefully will address many of the questions the Act itself leaves unanswered. While we await the clarifying regulations and the build-out of the infrastructure for this new medical marijuana industry in Pennsylvania, there are a few steps employers can take now to prepare for the requirements of this new law.  First, employers should review and revise as necessary their employee handbooks and policies.  Second, determine whether any changes need to be made to drug-testing procedures.  Third, review job descriptions to ensure that the standard of care expected for a given job is made clear. Finally, develop a plan for communicating with employees authorized to use medical marijuana, bearing in mind that virtually all of the conditions which qualify for treatment with medical marijuana also qualify as disabilities under federal and state disabilities laws, and so for most employers there is no benefit to proactively asking an employee or applicant whether he or she is authorized to use medical marijuana. However, once an employee identifies as an authorized medical marijuana user, it will be very important for the employer to communicate its rules and expectations to the employee.


Author’s note: Marijuana is still classified as a Schedule 1 controlled substance by the U.S. Drug Enforcement Agency and as such it remains a federal crime to grow, sell and/or use marijuana. Any content contained herein is not intended to provide legal advice to assist with violation of any state or federal law.

George Voegele (LL.M. 1997) is a member in Cozen O’Connor’s labor and employment department. Based in Philadelphia, he represents employers in the public and private sectors.

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