This definitely caught me flat-footed.
An implied duty to accommodate? I think not.
Pennsylvania’s medical marijuana law specifically states that no employer must “make any accommodation of the use of medical marijuana on the property or premises of any place of employment.”
But the law is silent about whether an employer must accommodate someone who takes medical marijuana at home but never uses it on the job.
Back in February of last year, I predicted that Pennsylvania companies would not have to accommodate an employee’s use of medical marijuana outside the workplace, and here’s why:
Marijuana is still a Schedule One drug, a controlled substance that is illegal under federal law. Indeed, the ADA explicitly states that a person with a disability cannot be someone who uses illegal drugs. Additionally, the Pennsylvania Human Relations Act carves out from the definition of “disability” the “current, illegal use of or addiction to a controlled substance, as defined in section 102 of the Controlled Substances Act.” Section 102 of the Controlled Substances Act includes marijuana. (Technically, it says marihuana. But, you get the point.)
So, I would argue that there is no duty in PA to accommodate an individual who uses medical marijuana [because that person is engaging in the current, illegal use of…a controlled substance.]
It turns out, I was wrong.
Or at least, the Pennsylvania Human Relations Commission disagrees with me.
I’ve learned that the PHRC’s position is that employers must consider accommodating an employee’s use of medical marijuana outside of the workplace unless it creates an undue hardship for the employer. That’s because an individual with a medical marijuana card who uses medically-prescribed medical marijuana “off-the-clock” is not engaged in the “illegal use” of a controlled substance. Indeed, Pennsylvania’s medical marijuana law permits the use of medical marijuana; so, there’s nothing illegal about it, at least under state law.
When will this position be tested? I’m told that there is a case that should hit the Pennsylvania Commonwealth Court soon in which this issue may be explored further.
What should PA employers do for now?
- If you are risk-aggressive, you can take an adverse employment action now based on an employee’s use of medical marijuana outside the workplace. You may eventually have issues with the PHRC, but the PHRC’s position is not binding on any court or tribunal.
- If you are risk-averse, consider taking a wait-and-see approach until a state or federal court in PA rules on this issue.
- Otherwise, unless your business operates in a regulated industry (e.g., airlines, public safety, etc.), there is nothing in either the Pennsylvania Human Relations Act or the Americans with Disabilities Act that would prevent your business from accommodating an employee’s use of medical marijuana outside the workplace as long as s/he doesn’t come to work under the influence.