Brief Overview of the Medical Marijuana Act

Act 16 of 2016, the Medical Marijuana Act (MMA), 35 Pa.C.S.A. §10231.101, et seq., effective May 17, 2016, puts Pennsylvania among the growing number of states permitting the use of marijuana for prescribed medicinal purposes. The MMA, like all state laws purporting to “legalize” marijuana use, squarely conflicts with federal law, which still considers marijuana to be a Schedule 1 substance under the Controlled Substances Act with no legitimate medical uses, see 21 U.S.C. Sections 812(b)(1)(A)-(C); 844(a).

The MMA acknowledges: “Nothing in this act shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of federal law.” The MMA creates uncertainty with respect to the application and enforceability of employer “zero tolerance” and similar policies against the use of illegal drugs, injects new risks into the workplace and adds still more potential claims to the ever-growing list of employment-related causes of action.

The Medical Marijuana Act (“MMA”) provides for a system through which individuals suffering from one of seventeen “serious medical conditions” (e.g., cancer, post-traumatic stress disorder, HIV/AIDS, epilepsy, and Parkinson’s disease) can obtain and use medical marijuana for treatment. It governs the growth, processing, and dispensing of medical marijuana to eligible individuals.

In order to obtain and use medical marijuana under the MMA, an individual with one of the enumerated medical conditions must have a certification from his or her healthcare provider. Medical marijuana can only be dispensed in one of six specified forms: pill, oil, topical solution, a form appropriate for vaporization or nebulization, tincture, or liquid. Smoking medical marijuana is expressly prohibited under the MMA.

The Medical Marijuana Act’s Employment Provisions

There are provisions concerning employment in the MMA that Pennsylvania employers should be aware of. The substance of these provisions is as follows:

Discrimination against an employee certified to use medical marijuana is prohibited.

The MMA provides that no employer “may discharge, threaten, refuse to hire or otherwise discriminate or retaliate” against an employee solely on the basis of that employee’s status as an individual who is certified to use medical marijuana. As a result, individuals certified to use medical marijuana are now somewhat of a protected class in Pennsylvania.

Employers need not allow the use of medical marijuana in the workplace.

The MMA states that an employer is not required to accommodate the use of medical marijuana “on the property or premises of any place of employment.” In other words, employers do not have to permit their employees to use medical marijuana while at work.

Employers can discipline employees for being under the influence of medical marijuana in the workplace – in certain circumstances.

Under the MMA, an employer can discipline an employee for i) being under the influence of medical marijuana in the workplace, or ii) working while under the influence of medical marijuana “when the employee’s conduct falls below the standard of care normally accepted for that position”

Thus, it appears that in order to discipline an employee pursuant to this provision without running afoul of the MMA, the employee must both be under the influence of medical marijuana while at work, and have his or her job performance fall below an accepted “standard of care.” As discussed in more detail below, each of these components raises questions for employers. 

Certain safety-sensitive duties and positions are specifically addressed.

The MMA provides that no one under the influence of medical marijuana may engage in the following:

  • control of chemicals which require a permit issued by the federal or state government;
  • the operation or control of high-voltage electricity or any other public utility; or
  • employment duties at heights or in confined spaces, including mining.

The MMA also permits employers to prohibit employees who are under the influence of medical marijuana from engaging in any task that an employer deems life-threatening to any employee of the employer, or any duty which could result in a public health or safety risk.
The MMA does not require employers to violate federal law.

Nothing in the MMA requires an employer to do anything that would put it or any person acting on its behalf in violation of federal law. This means, at a minimum, that employers in industries subject to federal requirements that prohibit marijuana use, such as United States Department of Transportation requirements or the federal Drug Free Workplace Act, can continue to abide by and enforce those standards.

Unanswered Questions About the Medical Marijuana Act for Pennsylvania Employers

  1. What does it mean to be “under the influence” and how does an employer prove this?
  2. What is the “standard of care” for a particular employee’s position?
  3. Does the MMA require employers to accommodate medical marijuana use outside of work?
  4. What about an accommodation under the Americans with Disabilities Act or Pennsylvania Human Relations Act?
    1. The Americans with Disabilities Act (ADA) does not require employers to accommodate the current use of illegal drugs by their employees. Under the ADA, a drug is considered “illegal” if its possession and distribution is unlawful under the federal Controlled Substances Act (CSA). Despite the legalization of medical marijuana under Pennsylvania law, possession and distribution of marijuana remains unlawful under the CSA. Based on this alone, there is arguably no duty to accommodate medical marijuana use under the ADA. The few courts that have addressed the issue of accommodating medical marijuana use under the ADA in other states have generally adopted this line of reasoning.

Things Pennsylvania Employers Can Do Now

  1. If your business is subject to federal laws or regulations mandating a marijuana-free workplace, continue to abide by those requirements. The MMA does not require employers to violate federal law that prohibits marijuana use by employees.
  2. Do not ask applicants for employment if they are certified to use medical marijuana. Just like with other protected classes (age, disability, etc.), to lessen the likelihood of potential discrimination claims, employers should generally avoid asking current employees or applicants if they are certified to use medical marijuana.
  3. Make sure your EEO policies encompass those certified to use medical marijuana. At a minimum, the MMA prohibits employers from taking adverse employment action against an employee because he or she is certified to use medical marijuana. As a result, such individuals are now essentially in a protected class. Employers should address this, in one form or another, in their Equal Employment Opportunity policies.
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  7. If faced with a medical marijuana-related employment issue, consult your employment lawyer… ME!!!