As laws governing medical marijuana change across the nation, the Pennsylvania General Assembly has taken action. Governor Shapiro signed Act 63 on December 14, 2023, which will update Pennsylvania’s Medical Marijuana Permitting Program.
In her latest blog, KingSpry’s Employment Law Chair, Attorney Avery E. Smith discusses what Act 63 means for Pennsylvanians and the nuances medical marijuana imposes on Employment Law.
Proposal
Act 63 originated as Senate Bill No. 773, which was sponsored by Senator Chris Gebhard. According to Senator Gebhard, the purpose of Act 63 is to grant independent growers and processors permits under the Commonwealth’s Medical Marijuana Program.
Legislative History
Former Pennsylvania Governor, Tom Wolf, signed the Pennsylvania Medical Marijuana Act in 2016 (the “Act”). The Act makes medical cannabis legal for Pennsylvanians with a “serious medical condition,” such as cancer, epilepsy, Parkinson’s disease, or post-traumatic stress disorder. The Act further governs who is permitted to sell or dispense medical cannabis directly to patients.
Prior to the enactment of Act 63, Pennsylvania growers and processors were not permitted to sell medicinal marijuana directly to patients. Senator Gebhard wrote in his memorandum that an “unfair system for dispensing products to patients” was created, after the Pennsylvania Department of Health allowed some growers to sell directly to patients but not all.
Act 63 amends various sections of the Act to allow qualifying independent growers and processors to receive dispensary licenses and sell directly to patients. Supporters of Act 63 believe that these changes will promote a more competitive market and increase employment opportunities in the Commonwealth’s cannabis industry.
Act 63 will take effect on April 12, 2024.
Employment Challenges
Although Pennsylvanians may be eligible to receive a medical marijuana card and use medical marijuana, there may be implications such individuals during the course of their employment. Employers can discipline employees for using or being under the influence of medical marijuana while at work.
Additionally, employers are not required to grant accommodations for medical cannabis use while at work. Employers can bar employees from performing safety-sensitive jobs, such as operating heavy machinery or working with high-voltage electricity, while under the influence of medical marijuana.
Pennsylvania employers who are subject to federal drug-testing requirements and related marijuana standards should understand their additional considerations, as well. Failure to comply with federal standards may jeopardize a company’s receipt of federal funds.
Employee Protections
The Act does offer medical marijuana users some employment protections. Specifically, the Act prohibits discrimination, retaliation, discipline, or termination of employees “solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.”
Finding a Balance
For Pennsylvania employers that may be struggling to balance employees’ needs and maintenance of a safe workplace, one of the most important things to do is ensure that your policies and practices are fair and equally imposed against all employees.
Some employers may establish drug-testing procedures that occur at the beginning and/or throughout the duration of employment. Others may only require drug testing when an accident occurs or there is reason to believe an employee is under the influence. Regardless of the policy, employers must be consistent in enforcing it.
Both employers and employees should strive to be flexible. Employers must be prepared to change their policies as the courts and legislature make decisions in this developing area of law. Likewise, employees who use medical cannabis must understand that possessing a medical marijuana card does not relieve them of potential discipline during the course of their employment. The problem for employees is that marijuana can stay in one’s system for weeks, which may cause individuals to test positive even when they are not impaired.
Key Takeaway for Employers
The bottom line is that employers should revisit their policies often to ensure that they comply with applicable medical marijuana laws and keep abreast of contemporary standards.
