On September 24, 2024, the Pittsburgh City Council passed Ordinance No. 2024-0705 (the “Ordinance”), prohibiting discrimination on the basis of one’s status as a medical marijuana patient. Mayor Ed Gainey signed the Ordinance on the same date, making it effective immediately.
KingSpry’s Employment Law Chair, Avery E. Smith, Esq., reviews the new Pittsburgh Ordinance and offers guidance to employers as they navigate the ever-changing laws governing medical marijuana use.
Amendment to the Pittsburgh City Code
The Ordinance amends the Pittsburgh City Code to include one’s status as a medical marijuana patient as a protected class. A medical marijuana patient is defined as “an individual who has a serious medical condition, disability or handicap such that qualifies them for medical marijuana use and who is certified under the Pennsylvania Medical Marijuana Act of 2016 to access marijuana for a certified medical use.”
Impact on Employment Practices in Pittsburgh
The Ordinance prohibits any employer, with five or more employees, employment agency or labor organization from discriminating, in hiring or employment, against any employee or prospective employee because of their lawful status as a medical marijuana patient. This prohibition includes requiring pre-employment drug testing for marijuana and such testing during the course of employment as a condition of employment.
Despite such protections, the Ordinance does not require an employer to allow the use of medical marijuana on workplace premises. Further, it permits employers to take disciplinary action against an employee, who is also a medical marijuana patient, if they are under the influence of medical marijuana in the workplace and their conduct falls below the normal standard of care for their position.
Exceptions
The prohibition does not apply to individuals working in the following jobs or professions:
- Any position which is subject to drug testing due to regulations of the United States Department of Transportation or the Pennsylvania Department of Transportation;
- Any position that requires the employee to carry a firearm; and
- Any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants.
Additionally, the prohibition does not apply to the following employment practices:
- Drug testing for illegal use of controlled substances;
- For-cause drug testing when supervisors have reasonable cause to suspect an employee of being under the influence; and
- Drug testing after a workplace accident.
The Ordinance also reiterates Section 510 of the Pennsylvania Medical Marijuana Act, which prohibits certain duties from being performed by an employee while they are under the influence of medical marijuana.
Key Takeaways for Pennsylvania Employers
Pennsylvania employers should note that the Ordinance only impacts Pittsburgh employers, while the Pennsylvania Medical Marijuana Act impacts most employers in Pennsylvania.
The Ordinance follows a recent trend in employment law that aims to extend workplace protections to employees that legally use medical marijuana. In 2016, the Pennsylvania Medical Marijuana Act (the “Act”) was passed and permits individuals with a “serious medical condition” to receive a certification to use medical marijuana obtained from a licensed dispensary in Pennsylvania.
Employers are encouraged to discuss the current legal status of medical marijuana in Pennsylvania with their legal counsel to determine whether their employment practices are compliant with local, state, and federal laws.
