Articles by Our Attorneys

In the context of divorce, Pennsylvania is an equitable NOT community property state. Whereas, courts in community property states attempt to distribute things 50/50 to the best of their ability, courts in equitable distribution states are not similarly constrained. The courts are more concerned with doing what is fair and 50/50 is not always fair.

When dividing the marital estate (assets acquired during the marriage) different facts in each case will determine how much each spouse gets—i.e. length of the marriage, the age and health of the parties, the economic circumstances of each person at the time the division of the assets will go into effect, etc.

In some cases 50/50 is in fact fair. However, in some cases 70/30 in one spouses favor is fair. The factors listed above and many more determine what is fair in each case. Additionally, these factors may allow for each asset to be divided a different percentage. This means while equity in the house may be divided 50/50, the retirement accounts may be divided 46/54.

Parties can either reach an agreement as to how the estate should be divided or, at the requests of the parties, the courts can determine how assets should be divided.

This may seem like a lot, but determining how to divide the marital estate is only one piece of the puzzle. Equally important is determining what actually is marital and eligible for distribution.

This past week, Pennsylvania’s Governor voiced his support for legalizing recreational use of marijuana, touting it as a potential source of tax revenue to boost the struggling economy during the COVID-19 pandemic. This should come as no surprise given that many states have recently relaxed marijuana restrictions. Indeed, legalization of recreational use is on the ballot this November in neighboring New Jersey (along with several other states), which would add to the list of 11 states, along with Washington D.C., that already permit it.

Despite the foregoing, marijuana remains illegal under federal law. This has led to confusion regarding an employer’s right to prohibit marijuana use, drug test, or discipline an employee who tests positive. Here are a few simple tips about employee marijuana use in Pennsylvania.

Stay up to date

First, be informed of the current state of the law. In Pennsylvania, a person with an approved “serious medical condition” who is a Pennsylvania resident and is certified by a doctor may participate in the medical marijuana program.  Pennsylvania has a list of 23 conditions for which individuals can use medical marijuana. Anxiety disorder was recently added to the list of approved conditions (which otherwise mostly consist of rarer medical conditions like ALS, epilepsy and MS). Accordingly, the prevalence of medical marijuana use is likely to rise in the near future. Notably, Pennsylvania law expressly states that employers may not discharge, threaten, refuse to hire, or otherwise discriminate or retaliate against an employee based solely on an employee’s status as a certified medical marijuana patient. Therefore, regardless of marijuana’s status under federal law, an employer could find itself facing a lawsuit if it discriminates against a certified medical marijuana patient.

Employment screening for marijuana is still lawful

Second, the fact that Pennsylvania law protects a person’s status as a medical marijuana patient does not mean that an employer cannot take any measures relating to marijuana use. Marijuana is still illegal under the federal Controlled Substance Act and employers can still require drug screens for marijuana use. This includes pre-employment screening, testing based on reasonable suspicion, periodic and random testing, and post-incident testing.  If an employee tests positive for marijuana, an employer may demand proof that the individual is a certified patient. If an employee is not a certified patient, an employer may treat the situation just like the unlawful use of any other controlled substance, and use a positive test as a basis to discipline or terminate the employee, or deny employment altogether.

Specific workplace rules can apply to certified medical marijuana users

Third, for those individuals who are certified patients, restrictions may be put in place that limit certain work activities. Employers can prohibit employees who are actively treating with marijuana from performing high-risk activities like handling chemicals, high-voltage electricity and mining.  In fact, an employer may prohibit a certified patient from performing any task that the employer deems “life threatening” while under the influence of marijuana, and this prohibition does not constitute an “adverse employment action” under Pennsylvania discrimination law, even if it results in financial harm to the employee. Employers are also not required under Pennsylvania law to make any accommodation of the use of medical marijuana on the premises.

The bottom line

The bottom line is that Pennsylvania law still gives employers latitude about how to treat marijuana use by employees, as long as employers do not violate the specific legal protections enacted for medical marijuana patients. As the legal landscape continues to evolve, employers will need to review their policies to stay compliant with the law as well as to promote health and safety in the workplace.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff also represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.

When dividing the assets during a divorce it is important to determine if an asset or liability is (1) marital or (2) non-marital. This is incredibly important because it determines what property is subject to division and what property is the “separate property” of each party.

Generally marital property—property acquired during the course of the parties’ marriage—is subject to equitable distribution. In some instances, property acquired during the marriage—i.e. an inheritance—is itself not subject to equitable distribution. However, any increase or decrease in value of that asset during the course of the marriage will be subject to equitable distribution.

On the other hand, non-marital property is property protected from equitable distribution and will not be subject to division. Property can be non-marital for a variety of reasons. Property acquired before the marriage, protected by a prenuptial or postnuptial agreement, acquired after separation or in certain exceptions are considered non-marital. However, this protection is not absolute. A non-marital asset commingled with marital assets can lose its protected status and become part of the property eligible for equitable distribution.

Not all assets owned by the parties at the end of a marriage are subject to division during a divorce and not all assets once considered non-marital remain so.

Governor Wolf’s moratorium on residential mortgage foreclosures and landlord tenant evictions in Pennsylvania expired on August 31, 2020. The question is what happens now.

On May 29, 2020, the Pennsylvania Legislature passed the Covid Relief – Mortgage and Rental Assistance Grant Program. A minimum of $150,000,000.00 was allocated for rental assistance grants and the money has been appropriated to the Pennsylvania Housing Finance Agency for Covid Relief. An eligible lessee (tenant), mortgagor (homeowner), landlord or mortgagee (bank) may apply for relief if the tenant or homeowner became unemployed after March 1, 2020 or had their annual household income reduced by 30% or more due to reduced work hours and wages related to Covid-19.

The application shall include a statement by the landlord or lender releasing the tenant or homeowner of any remaining obligation for any past due or future rent or mortgage payment for which the Agency pays the landlord or lender.

Only households with an annualized current income of no more than the upper limit of “median income” will qualify.

For rental assistance, an amount equal to 100% of the tenant’s monthly rent, not to exceed $750.00 per month, for each month for which assistance is sought for a maximum of six months is available. For mortgage assistance, an amount equal to 100% of the homeowner’s monthly mortgage, not to exceed $1,000.00 per month for each month for which assistance is sought for a maximum of six months is available. Payment shall be made no later than November 30, 2020.

In Chester County, Pennsylvania, Friends Association For Care and Protection of Children based in West Chester, has started a program beginning September 1, 2020 to prevent evictions. They will provide an attorney and social worker at court for any Chester County eviction and similar programs in Montgomery County and Philadelphia County have helped 80% of the tenants stay in their housing. If you are a landlord or a tenant you should contact an attorney to help you navigate these new procedures.

Despite the growing acceptance of marijuana in society and its shown medical benefits, a Pennsylvania Superior Court has held that it is not an abuse of discretion to consider a parent’s marijuana use, whether medical or recreational, when determining a child’s best interest. H.R. v. C.P., 2019 PA Super 357 (Pa. Super. 2019). This is significant given the fact that medical marijuana is legal in Pennsylvania and the law legalizing it states that an individual’s medical marijuana license shall not be considered by a court in a custody proceeding.

Generally child custody disputes in Pennsylvania are decided using the “best interest of the child” standard. This standard includes a host of factors, including a party’s history of drug or alcohol abuse and any other relevant factor.
Even though the Medical Marijuana Act states that an individual’s medical marijuana license shall not be considered by a court in a custody proceeding, the wording of the law does not explicitly ban the courts from still considering an individual’s history of recreational drug use. So while the court will not consider that a party has a medical marijuana license, they can consider the party’s medicinal use of the drug.

No one factor should be given more weight than any other factors, but it is important to know that a medical marijuana license does not prevent the courts from factoring a party’s marijuana use into their determination.