There are two new developments in the area of medical marijuana that employers should be aware of when addressing employee use of the same.
First, in a case from Arizona, Whitmire v. Wal-Mart Stores, Inc., which has a statute very similar to Pennsylvania’s, a court has found that in order to use a drug test to show that an employee was impaired by medical marijuana at work, you will need to present expert testimony to establish that the test results are sufficient to show impairment.
Pennsylvania’s law permits employers to prohibit employees from using medical marijuana or being under the influence of medical marijuana while at work. While from another state, this new case would seem to suggest that you will need more than a positive drug test to show that an employee is impaired or under the influence of medical marijuana.
In Whitmire, the court implies that if there is other evidence to show impairment beyond the drug test, the court could rely on that information, without expert testimony, to conclude the employee was impaired. As a result, given this decision, and the likelihood that an employer will not have an expert at the time an employment decision has to be made, most employers should look to establish the employee is under the influence of medical marijuana with evidence beyond just a drug test.
Until the law in Pennsylvania is settled in this area, it is also recommended that you consult with your counsel when addressing this issue.
Second, the first employment case in Pennsylvania regarding medical marijuana has been filed.
In late February, the case of Palmiter v. Commonwealth Health Systems, Inc., was filed in Lackawanna County and appears to be the first case in Pennsylvania alleging an adverse employment action on the basis of an employee’s use of medical marijuana outside of work that resulted in a positive drug test. This will be a case to keep an eye on to see how the courts in Pennsylvania handle this issue.
The Eastern Pennsylvania Employment Log (EPELog) is a publication of the KingSpry Employment Law Practice Group. Jeffrey T. Tucker, Esquire, is our editor-in-chief. EPELog is meant to be informational and does not constitute legal advice.