Medical Marijuana is coming to PA. What do employers need to know?

Medical Marijuana

Pennsylvania is about to become the second Commonwealth in the United States to legalize medical marijuana. (23 states — la di da, states — plus DC currently allow it)

Does this mean that employees with migraines can puff vape pens and eat Cheetos in your break rooms at work? Actually, I’m pretty sure that’s not how it works.

What’s the latest on this medical marijuana law?

Writing at PennLive.com, David Wenner reports here that the House voted yesterday to approve this bill legalizing medical marijuana. The vote was 149-46.

The Senate approved the original version of the bill last year. Then, it sat around for a while before gaining momentum in March of this year. And, after some amendments and yesterday’s House vote, all that left is for Gov. Tom Wolf to sign the bill, which he’s expected to do.

What will the law say?

A lot. I don’t have time to read all of it. The Americans starts in a few minutes.

How will it impact employers?

Here’s what it says about employment:

No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an 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.

Nothing in this act shall require an employer to make any accommodation of 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.

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.

I’m getting some mixed signals here. On the one hand, you can’t discriminate solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.” (my emphasis). This suggests that you can discriminate for other reasons, such as actual use of medical marijuana.

However, then it says “Nothing in this act shall require an employer to make any accommodation of the use of medical marijuana on the property or premises of any place of employment.” (my emphasis). This suggests that you may have to accommodate the use of medical marijuana outside of work. Unless the employee shows up to work under the influence.

Hmmm…

What should Pennsylvania employers do?

  1. If you operate in an industry where the law forbids you from employing people with Schedule 1 drugs in their system, then, this new law doesn’t change that. Continue doing what you’re doing.
  2. Other employers should educate their workforce about the new law, once it takes effect.
  3. An employee taking medical marijuana will have an underlying ADA disability. So, encourage medical marijuana users to initiate an interactive dialogue to discuss workplace accommodations for the underlying disability.
  4. I recognize that the Americans with Disabilities Act does not protect illegal drug use. But, the ADA carves out theuse of a drug taken under supervision by a licensed healthcare professional.” While some courts have taken a hard line against accommodation of medical marijuana, the law is still developing. So, consider treating medical marijuana as you would other prescription drugs, and refer back to Tip No. 3 above.
  5. Read some of my other posts about medical marijuana and the workplace. Here, here, and here.
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  • Mike Harrington

    Look West young man (whoa, 40!) because we’ve had legal recreational marijuana use for years. One case already went to Colorado Supreme Ct. In the west, WA, OR, AK and CO all allow both recreational and medical use. But a well crafted policy will allow an employer to continue to prohibit off duty use, even if the off duty use is legal under state law. See, for example:
    http://www.cobar.org/opinions/opinion.cfm?opinionid=9809

    • Thanks, Mike.

      Sounds like another East Coast/West Coast battle. Kinda like Biggie and 2Pac, but for HR. So, really, nothing like Biggie and 2Pac.

      But seriously, for unregulated industries and positions that are not safety-sensitive, I question whether the utility of applying a blanket zero tolerance drug use policy outweighs accommodating medical marijuana use, as long as MM doesn’t materially affect work performance.

      If others feel strongly about this — and by “this,” I mean medical marijuana and HR-compliance, not Biggie/2Pac — please add to this conversation.

  • heather coughlin

    Do you have any information or guidance on which industries disallow you from employing people with Schedule 1 drugs in their system? The only information I could find on that was for Department of Transportation employees.