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Still No Clear Answer for Employers on Medical Marijuana

As Published in the April, 2019 Issue of the PELRAS Newsletter

Published on: Thu 2nd May, 2019 By: Hobart J. Webster

The Medical Marijuana Act (the “Act”) took effect on May 17, 2016, making Pennsylvania the twenty fourth state to legalize medical marijuana.  35 P.S. § 10231.101 et. seq.   Although it’s been almost two years since the law went into effect, employers in Pennsylvania still have more questions than answers. The Pennsylvania Department of Health (the “Department”) is responsible for implementation and administration of the Act, but to date, the Department has only issued temporary regulations and none address employment issues.  There have not been any Pennsylvania court decisions that squarely address the Act’s employment provisions. 
While we await implementing regulations from the Department and guidance from Pennsylvania courts, the Act does provide some guidance for employers. First, it is clear that employers may continue to enforce prohibitions on positive marijuana tests for CDL drivers, as the Pennsylvania Medical Marijuana Act does not impact the applicability of the Federal Motor Carrier Safety Administration (“FMCSA”) regulations for CDL drivers. Furthermore, the Medical Marijuana Act mandates that employers not allow employees to work at heights or in confined spaces while under the influence of medical marijuana, and allows employers to prohibit performance of job duties while under the influence of marijuana where a public health or safety risk is presented, including a life threatening risk. 35 P.S. § 10231.510. Therefore, for positions that present an inherent and constant safety risk, such as law enforcement positions, there seems to be little question that off duty medical marijuana use can be prohibited by the employer.   

However, what about employees other than CDL drivers and police officers? Some provisions of the Medical Marijuana Act are straight forward – employers are expressly authorized to prohibit employees from possessing or using medical marijuana on employer property. But, significant provisions of the Act are less clear. For example, the Act prohibits employers from taking adverse employment action against an employee based solely on the employee’s status as a user of medical marijuana.  What does that mean?  

The plain language of the Act states, “[n]o employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.” 35 P.S. § 10231.2103(b)(1).  The Act continues, “This act shall in no way limit an employer’s ability to discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted for that position.”  

What does it mean to take an employment action based solely on an employee’s status as a user? What other factors need to be present before an employer can take action against an employee certified for medical marijuana use? Employers are largely left to guess, and ultimately, these questions will likely be answered by the courts.  It may be the case that unless the employer can identify evidence that an employee is under the influence at work, or evidence of possession or use on company property, an employer is barred from taking an adverse employment action against an employee who tests positive for marijuana. The answer may also depend on whether a safety risk is inherently present in the particular employee’s job duties, such as in the case of police officers and perhaps certain public works employees who may work at heights or in confined spaces (and of course CDL drivers which are governed by the FMCSA regulations). Further complicating matters is that testing for marijuana is far different than testing for alcohol because a urinalysis test for marijuana cannot determine approximate degree of impairment. And while a blood test can provide more specific information regarding degree of impairment than a urine test, blood testing is rarely conducted in the employment setting. 

You may also be asking, what about the Federal Drug-Free Workplace Act? Doesn’t that apply when a municipality receives certain federal funds? Employers are specifically empowered under the Medical Marijuana Act to comply with federal law, but does the Drug Free Workplace Act prohibit employees from lawfully using medical marijuana on their own time, away from the workplace? The answer to that question is unclear.  The Drug-Free Workplace Act requires some federal contractors and all grantees to agree that they will provide drug-free workplaces as a precondition of receiving a contract or grant from a federal agency.  But the focus of the Drug-Free Workplace Act is the workplace—it is unclear whether the Drug-Free Workplace Act prohibits employers from continuing to employ individuals who use medical marijuana consistent with state law, outside the workplace, and on their own time.  While this question has been litigated in at least two other jurisdiction with differing results, it has not been litigated in Pennsylvania. Compare, Carlson v. Charter Commc'ns, LLC, 742 F. App’x 344 (9th Cir. 2018) with Noffsinger v. SSC Niantic Operating Co., LLC, 338 F. Supp. 3d 78, 81 (D. Conn. 2018) (D. Conn). Until Pennsylvania courts address this issue, employers are left with more questions than answers. These situations require a careful analysis of the specific facts and circumstances unique to each employer. It is essential to work through these issues with your labor counsel.