Medical Marijuana in the Workplace . . . What Employers Need to Know Right Now!

Last spring, Pennsylvania joined more than 20 other states when it legalized marijuana for medicinal use. Gov. Wolf signed Pennsylvania’s Medical Marijuana Act (MMA) on April 17, 2016, and it went into effect one month later.

While the primary purpose of the act is to set up a system by which qualified patients can become certified to use medical marijuana and by which growers and dispensers can produce and provide the now-legal product, the tentacles of the act reach beyond the medical world—specifically, into the world of employment law.

Since its passage, the act has sent ripples of uncertainty and confusion into human resources offices across the state. Unfortunately, although more than six months have passed since the act was passed, we don’t know much more about its impact on employment law now than we did then.

But that’s not to say we don’t know anything … so what do employers need to know now?

1. The act contains an employment anti-discrimination provision that states as follows:

“No employer may discharge, threaten, refuse to hire, or otherwise discriminate or retaliate against any employee regarding an employee’s compensation, terms, conditions, location, or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana” (MMA §2103(b)(1)).

Although more than 20 other states have legalized medicinal marijuana, for purposes of the Pennsylvania act, an “individual who is certified to use medical marijuana” refers only to individuals certified under Pennsylvania law. An employee who is certified in another state would not necessarily be entitled to the protection of Pennsylvania’s provision.

We know that it will take some time for Pennsylvania to implement the regulatory framework necessary to begin the certification process, set up dispensaries, and begin actually distributing marijuana (18-24 months). But until that happens, no adult in Pennsylvania will be an “individual who is certified to use medical marijuana.”1

For the sake of argument, however, let’s assume that an employer is confronted with an employee that voluntarily discloses use of medicinal marijuana. In such cases, it is recommended that employers be aware of the anti-discrimination provision of the act and that care be taken not to discriminate against any employee solely on the basis of his/her voluntary disclosure of medicinal marijuana use.

2. Employers are not required to accommodate the use of medical marijuana at work, and employers retain the ability to discipline employees for using marijuana at work. Along these lines, the MMA provides:

“Nothing in this act shall require an employer to make an accommodation for the use of medical marijuana on the property or premises of any place of employment. This act shall in no way limit an employer’s ability to discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted for that position” (MMA §2103(b)(2)).

While this seemingly employer-friendly terminology permits disciplining users of medical marijuana if they are “under the influence” at work, we unfortunately do not yet know what is meant by “under the influence.”

This term is not included in the definition section of the act and is not specifically defined for purposes of the above provision at §2103(b)(2). Elsewhere in the act, certain chemical levels are specified when discussing what is meant by “under the influence.”

Section 510, for example, prohibits the operation of high-voltage electricity or any other public utility “while under the influence with a blood content of more than 10 nanograms of active tetrahydrocannabis (THC) per milliliter of blood in serum” (MMA §510(1)(II)).

In other subparts of §501, however, “under the influence” is used without defining the term. Another challenge of interpreting this provision of the act and defining “under the influence” is that marijuana chemicals can remain in the body for several days after use and after the “influence” period has passed.

Because the act requires the implementation of regulations down the road, we are hopeful some of this uncertainty will be addressed.

Until then, we recommend that employers reach out to their drug-testing providers and begin to ask questions about enhanced testing, including saliva testing, and what resources, if any, the provider has for helping employers comply with the act while maintaining a safe and productive workplace.

In the meantime, employers can continue to utilize and enforce their drug-testing and drug-free workplace policies, even when the drug being used is medicinal marijuana.

3. The act prohibits certified users from performing certain safety-sensitive jobs while “under the influence” of medicinal marijuana:

• Operating or being in physical control of chemicals that require a permit issued by the federal government, state government, federal agency, or state agency

• Operating or being in control of high-voltage electricity or any other public utility

• Performing any employment duties at heights or in confined spaces, including, but not limited to, mining

• Performing tasks that the employer deems life threatening to either the employee or any employees of the employer

• Performing any duty that could result in a public health or safety risk (MMA §510)

4. The act does not require employers to “commit an act that would put the employer or any person acting on its behalf in violation of federal law” (MMA §2103(b)(3)). For example, an employer would not be required to accommodate a truck driver using medicinal marijuana if such accommodation violates federal Department of Transportation regulations.

5. Insurers and health plans are not required to provide coverage for medical marijuana (MMA §2102). The inclusion of Section 2102 in the act is consistent with a nationwide consensus that medicinal cannabis need not be covered under health insurance.

That marijuana remains a Schedule I controlled substance, is illegal under federal law, and is not an FDA-approved medical treatment lend support to those employers and insurance companies objecting to coverage.

Section 2102 recognizes these concerns and objections and gives clear guidance to insurers and health plans in Pennsylvania regarding their requirements—or rather the lack thereof—to provide health insurance coverage for medicinal marijuana.

6. The act does not, currently, supersede an employer’s rights under the ADA. For example, under current interpretations of the law, employers are not prohibited by the ADA from discharging an employee who tests positive for marijuana, even if the use is pursuant to a valid prescription.2

However, the employee who voluntarily and proactively discloses medical marijuana use, due to a serious medical condition, may be entitled to protection under the ADA. In such a scenario, the employer should engage in the interactive process with the employee.

Seeking guidance from counsel in such situations is strongly recommended.

As with any new law, we have much left to learn. As the Pennsylvania Department of Health begins to implement regulations, we are hopeful that some of our questions will be addressed, including what is meant by “under the influence” and whether the anti-discrimination provisions apply to those certified to use medical marijuana in other states.

In the meantime, should you have specific questions about the law, your policies, or your employees, you should not hesitate to call counsel and seek further guidance. BW

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Denise Elliott is an attorney in the Labor and Employment Practice Group at McNees Wallace & Nurick LLC. She focuses her practice on defending self-insured employers in workers’ compensation matters and representing clients in employment discrimination litigation. delliott@mcneeslaw.com

1 Note – children who require medical marijuana to treat one of the enumerated conditions in the act may be able to obtain out-of-state certification pending implementation of the act’s certification framework. There has been no such allowance for adults to obtain temporary out-of-state certifications.

2 This could change, however, as the MMA evolves and as we further understand how “under the influence” will be defined in Pennsylvania. Further, the EEOC may change its position on the protected nature of medical marijuana as more states legalize its use.