Medical marijuana is allowed in Pennsylvania, and recreational use of cannabis is legal in nearby New Jersey. However, the federal government still defines cannabis as a Schedule 1 substance with “no currently accepted medical use and a high potential for abuse.”
What does that mean for Pennsylvania employers? The rules can be confusing, especially since more of your current and prospective employees may be consuming cannabis products than in the past.
Many employers are pondering questions like, “Should I care if an employee uses cannabis while not on the job?” “Should I refrain from hiring a candidate because of their cannabis use?” “How do I tell if an employee is impaired?”
Cannabis Law in Pennsylvania
Governor Tom Wolfe signed the Pennsylvania Medical Marijuana Act in 2016. The law makes medical cannabis legal for people with a “serious medical condition” such as cancer, epilepsy, Parkinson’s disease, and post-traumatic stress disorder. More than 400,000 Pennsylvanians have medical marijuana cards.
Under the law, employers cannot discriminate against workers because they are medical marijuana patients or discipline or fire them “solely on the basis” of their status to use medical marijuana.
However, employers can discipline employees for using or being under the influence of medical marijuana at work. They can also bar workers from performing dangerous jobs like handling hazardous chemicals or working with high-voltage electricity while under the influence of medical marijuana.
Additionally, the law allows employers to block workers from performing job duties that “could result in a public health or safety risk while under the influence of medical marijuana.”
In Philadelphia, pre-employment testing for marijuana is prohibited, but that is not the case in the suburbs.
Legal Challenges
Employers across the country are facing legal challenges over the balance between workplace policies, state medical marijuana laws, and employee rights.
For example, a New Jersey federal court held that employers in the state do not have to waive mandatory drug tests for medical marijuana patients. A federal court in Arizona ruled that Walmart ignored that state’s medical marijuana law protections when it fired a worker who had been prescribed marijuana but was not proven impaired at work.
Closer to home, some Pennsylvania workers have filed lawsuits alleging that they suffered adverse employment actions after their employers learned that they had medical marijuana cards.
Employers should expect to see more of these lawsuits. The Pennsylvania Chamber of Business and Industry and more than 30 other employer groups have asked the legislature to provide guidance on medicinal cannabis and workplace safety. Unfortunately, there has not been a response yet.
A Pennsylvania Supreme Court ruling could offer some clarity, but such a ruling could be years out.
Workplace Policies
Employers who find themselves navigating these murky waters should focus on whether an employee’s medical marijuana use could cause the worker to be impaired on the job. An impaired employee may not be able to perform their job and could create a safety hazard.
Some employers perform drug tests when an accident occurs or if they have reason to believe a worker is under the influence at work. The problem is how to make that determination. While marijuana tests are improving, no test detects a person’s current level of impairment. Some say the best practice is for employers to establish procedures to look for signs of impairment and then use a drug test to verify.
Additionally, some companies have policies that allow employees to be disciplined or even terminated if they refuse to test in those situations. Other businesses have zero-tolerance policies for workers who have high-risk jobs.
Of course, employers need to comply with the Americans with Disabilities Act, which requires them to provide reasonable accommodations to employees with disabilities. But, again, the issue is complicated because the ADA is a federal law, and the federal government still considers marijuana use illegal.
Similarly, companies with employees subject to federal drug-testing requirements have additional considerations. For example, the U.S. Department of Transportation says truck drivers and bus drivers must adhere to its drug testing requirements and cannot use cannabis.
Best Practices for Employers
The bottom line is that employers should revisit policies for job candidates and existing employees and ensure they comply with applicable medical marijuana laws.
If you decide to have a random drug testing policy, make sure everyone in the company is subject to the testing. If you have unionized employees, you will also have to consider the obligation to bargain testing.
Employers should also update job descriptions and identify safety-sensitive jobs. Outline the steps you will take if an employee tests positive for THC (the substance in marijuana that makes people high), as well as other controlled substances.
And be flexible! Be prepared to change your policies as the courts issue decisions in this developing area of the law.
If you have any questions, please consult with your solicitor or one of the employment attorneys at KingSpry.
