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.