On April 17, 2016, Pennsylvania Governor Tom Wolf signed Senate Bill 3 (SB3), otherwise known as the Medical Marijuana Act, which legalizes the prescription and use of medical marijuana by persons with a “serious medical condition” in the Commonwealth of Pennsylvania. Under Pennsylvania’s Medical Marijuana Act, only persons with a specified “serious medical condition” may be prescribed or use medical marijuana, and recreational use of marijuana remains prohibited. The act, which includes certain provisions specific to employers, will go into effect on May 17, 2016, leaving little time for employers to become familiar with the requirements set forth in this lengthy law. Fortunately, these employer-specific provisions can be succinctly described as follows: (1) An employer may not discriminate against an employee based solely on the employee’s status as an individual who is certified to use medical marijuana; (2) certain exceptions to the antidiscrimination provision exist; and (3) employers are not required to accommodate the use of medical marijuana in the workplace.
First and foremost, Pennsylvania employers must be aware that under section 2103(b) of SB3 , “[n]o 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.” Thus, as a practical matter, employers should generally avoid asking prospective employees about their use of medical marijuana during the interview process to avoid the appearance of discrimination. Additionally, employers that subject employees to drug testing as part of their hiring procedures or in the regular course of business should not discipline, discharge, or take other adverse action against an employee solely for testing positive for marijuana if that person has been granted a certification for its use, unless one of the enumerated exceptions to the antidiscrimination provision applies.
One such exception to the antidiscrimination provision exists in situations where an employer following the act “would put the employer or any person acting on its behalf in violation of Federal law.” Additionally, the act provides that employees are prohibited from being under the influence of medical marijuana while performing any of the following tasks: (1) operating or being in physical control of, chemicals requiring a permit by a federal or state government or agency, (2) working with high-voltage electricity or other public utility; or (3) performing employment duties at heights or in confined spaces, such as mining.
Furthermore, notwithstanding the antidiscrimination provision above, section 510 of the act permits employers to prohibit an employee from performing any task while under the influence of medical marijuana that the employer deems life-threatening to the employee or any of its other employees, or that could result in a public health or safety risk. These exceptions apply even if they may result in financial harm to the employee.
The antidiscrimination provision also does not prohibit employers from disciplining an employee for being under the influence of medical marijuana in the workplace or while performing work if “the employee’s conduct falls below the standard of care normally accepted for that position.” How employers should go about proving that an employee’s work performance fell below a reasonable standard of care due to being under the influence of medical marijuana is not spelled out in the act. However, regulations anticipated in the coming months may provide additional guidance. Finally, employers can rest assured that, under section 2103(b)(2), they are not required to allow the use of medical marijuana on their property or premises.
The Medical Marijuana Act’s provisions relating to employers, while seemingly straightforward, do not provide significant guidance and leave a number of unanswered questions, including: (1) What does “under the influence” mean? (2) Do the act’s antidiscrimination protections apply only to Pennsylvania residents who are prescribed medical marijuana? (3) How does an employer prove that an employee’s performance fell below the relevant standard of care due to the use of medical marijuana?
Employers should stay tuned for new developments over the coming months, as the Pennsylvania Department of Health is expected to issue temporary regulations within 6 months of the act’s effective date and full regulations within 18 months of that date, both of which may address these and other gray areas relating to employers.