A reported 1,670 New Jersey residents are legal medical marijuana patients, and a reported 123,650 New Jersey residents commute to work in Pennsylvania. What should you, as a Pennsylvania employer, do if one of those medical marijuana patients is your employee? Because there is no definitive agency or judicial guidance, this scenario raises more questions than answers, but here are some points to consider:
Does the Americans with Disabilities Act (ADA) protect employees, commuting from New Jersey to work in Pennsylvania, who are prescribed marijuana?
Because of the existence of strict requirements to participate as a registered patient with the Medical Marijuana Program of New Jersey (“MMP”), it is likely that the ADA would protect an employee who can still perform the functions of his or her job, with or without a reasonable accommodation. Among other things, in order to register with the MMP, a patient must be diagnosed with a debilitating medical condition, including, but not limited to Multiple Sclerosis, terminal cancer, and Muscular Dystrophy. As long as the employee can perform the functions of the position, an employee with any of the above conditions is likely to be ADA-protected.
May an employer terminate an employee who admits that he or she is under the influence of marijuana while working?
The answer depends on a few different factors. If the employee is a resident of Pennsylvania, or otherwise uses marijuana illegally, the Americans with Disabilities Act (“ADA”) does not protect the employee from termination. However, if the employee is prescribed medical marijuana by a physician, the ADA may protect the employee.
Marijuana used as a prescription drug is not treated the same under the ADA as alcohol or illegal drugs. Under the ADA, prescription drugs used to treat a disability are protected, provided that the employee can still perform the functions of his or her job, with or without a reasonable accommodation. Accordingly, before terminating an employee protected by the ADA, the employer must engage the employee in an interactive process to determine whether the employer can accommodate for the employee’s disability without an undue hardship. If the employee’s use of marijuana impairs the employee’s ability to perform the functions of the position and there is no reasonable accommodation, the employee may be terminated.
May an employer require employees to undergo drug testing that includes a test for the appearance of marijuana?
Because marijuana may be a legally prescribed medication for some employees and an unlawful recreational drug for others, there is no bright line answer to this question. Employers may, with certain ADA limitations, test employees for the use of illegal drugs. Otherwise, employers may only perform drug testing in accordance with business necessity and following the strict criteria set forth in the ADA for the performance of medical examinations.
Even if there is a business necessity to identify employees who report to work under the influence of marijuana, with or without a prescription, most drug tests would exceed the scope of business necessity. It is reported that most drug tests will show positive results for marijuana that was used anywhere between four days and two months prior to the test. Therefore, drug tests may expose an employer to medical information that is ADA-protected and outside the scope of business necessity.
May an employer require job applicants, before an offer of employment is made, to undergo drug testing that includes a test for the appearance of marijuana?
Just like the drug testing of current employees, because marijuana may be a legally prescribed medication for some applicants and an unlawful recreational drug for others, there is no clear answer to this question. It should be noted that the ADA has always prohibited pre-offer medical screening. But, Pennsylvania’s federal courts have instructed us that the ADA’s prohibition on pre-offer medical screens does not include testing for illegal drug use. However, employers should know that the courts have also cautioned that a pre-offer drug test may not be administered under the guise of testing for illegal drug use, when in fact the results are used to make employment decisions based on an applicant’s use of both legal and illegal drugs.
What does this mean for employers who may find themselves interviewing an applicant from a state, such as New Jersey, that has legalized the medical use of marijuana? A drug test of these employees could detect both legal and illegal marijuana use.
Does an employer need to allow an employee to be in possession of marijuana at the employer’s workplace?
Because marijuana is still illegal in Pennsylvania, employers may not allow employees, even with a lawful prescription, to be in possession of marijuana at work. Therefore, marijuana possession at a Pennsylvania employer’s workplace should be strictly prohibited, according to a written policy that is distributed to all employees.
Does a Pennsylvania employer need to tolerate employees’ recreational use of marijuana?
It is highly unlikely that a Pennsylvania employer would encounter an employee who is commuting from a state that allows recreational marijuana use. So, generally speaking, recreational marijuana use should be unlawful and, therefore, not ADA-protected. However, should an employer encounter an employee who is engaging in legal recreational marijuana use, the ADA’s rules for addressing alcoholism would probably apply.
Pennsylvania employers are best advised not to assume that all employees using marijuana may be terminated, or applicants not hired, even though marijuana is still illegal in Pennsylvania and according to federal scheduling. Although Pennsylvania has yet to pass medical marijuana legislation, Pennsylvania employers are still advised to be aware of the interaction between the ADA and medical marijuana laws that have been passed in neighboring states. Contact a competent employment attorney to assist you in revising your drug-free workplace policies, in accordance with the changing times.
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.
