In April of 2016, with the passage of Pennsylvania’s Medical Marijuana Act, the Keystone State became the twenty fourth state in the nation to permit the use of marijuana for medical purposes.
While the law provides for significant regulation in terms of the sale and use of marijuana, it creates a host of possible new issues for employers with respect to the Americans with Disabilities Act (ADA).
Under the ADA, an employer is not required to permit an employee to use or be under the influence of marijuana while at work, even if used for medical purposes for a qualifying disability, and the new Pennsylvania law mirrors that requirement.
In fact, under the Pennsylvania law, and similar laws in other states, employers are free to continue to require a drug free work environment, including requiring drug tests and terminating employees who fail them. For example, in a case in 2015 from Colorado it was found that an employer properly fired an employee for off-site drug use that affected performance of the employee’s job or led to a positive drug test without running afoul of the ADA.
In addition, under Pennsylvania’s law, an employer can impose any limitations on the use of marijuana necessary to comply with federal law.
While this sounds good, the fact remains that if an employee is terminated for the use of marijuana and that employee also has a qualifying disability under the ADA, that employee may claim that the firing was due to the disability and not the drug use.
A 2015 case from Michigan illustrates this point quite well. In that case, the employee disclosed early on in her employment with an assisted-living facility, after testing positive for drugs, that she took medical marijuana for epilepsy. The employee and the employer had a resulting conversation in which the employer raised concerns about the employee’s drug use, the limitations the epilepsy might create on her ability to do her job, and why the employee did not reveal this information sooner (which the employer claimed amounted to lying.)
The Court found that given the multitude of reasons proffered for the termination, there was sufficient evidence that a jury could find that the drug issue was merely a pretext to justify a firing that was in reality due to the disability, the latter of which would be impermissible under the ADA.
As a result, employers need to be careful when taking adverse actions against employees for marijuana use, that they carefully document what the reason was for the firing, avoid discussions about other areas, and ensure that any drug use policy is uniformly enforced both as to employees who use drugs for medical purposes and those who use them for other purposes, to avoid raising possible arguments that the firing was due to the disability.
In addition to the ADA issues outlined above, Pennsylvania law prohibits adverse employment actions based upon the fact that the employee is registered to use marijuana under the new law. Put another way, you can fire an employee if he or she uses marijuana while at work or is under the influence of it at work, but you cannot fire the employee merely because they are registered to use it and may in fact be using it outside of work.
This is problematic in that, if an employer administers a drug test and it comes back positive, does that show that the employee used marijuana the day before while not at work, which is possibly a protected activity, or does it show that the employee is currently under the influence of marijuana at work, which would not be a protected activity?
In a 2005 case from Oregon, the court struggled with this very issue. They held that a jury should decide whether it was a reasonable accommodation to require a different drug test for this employee to ensure the protected activity (which was due to the employee’s disability) was not infringed upon.
Any discussion of this issue raises additional ADA questions, in that the employee may disclose that he or she has a specific disability, as only certain medical conditions qualify for the use of medical marijuana under Pennsylvania’s law, and the employer might not otherwise be aware of the fact that this employee has any disability. As a result, employers should be careful in determining what procedure they will use to test employees for drugs, that they ensure they only test for a level of marijuana that may create an impairment or use of the drug while at work, and that they be cautious in the discussions with employees surrounding drug testing that may raise — or reveal — the existence of a disability.
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.
