On April 17, 2016, Governor Tom Wolf signed into law Pennsylvania’s Medical Marijuana Act (the Act), making Pennsylvania the 24th state to legalize a comprehensive medical marijuana program. Although the Act went into effect on May 17, 2016, the Department of Health has until November 17, 2016 to begin publishing temporary regulations. Implementation is expected to take between 18 and 24 months. As an employer, it is in your best interest to familiarize yourself with the law before the program is finalized in preparation to deal with related issues if, and when, they arise.
To be eligible for medical marijuana, patients must receive a certification from a practitioner, a valid identification card, and be diagnosed with any of seventeen qualifying serious medical conditions, including cancer, Parkinson’s disease, multiple sclerosis, and epilepsy. Patients will then be permitted to obtain medical marijuana at any of the licensed dispensaries around the state. The marijuana will only be distributed in a limited number of forms, including pills and oils, but not in forms that can be smoked.
Although employers will not be required to accommodate the employee’s use of medical marijuana at the place of employment, you will be prohibited from discharging, threatening, refusing to hire, or otherwise discriminating or retaliating against an employee because of his or her medical marijuana eligibility. At the same time, the Act does not prohibit disciplining an employee under the influence of marijuana in the workplace or an employee working under the influence of marijuana when his or her performance falls below acceptable standards.
The Act prohibits patients under the influence of marijuana in the workplace from controlling chemicals requiring a federal or state permit, working with high-voltage electricity, and performing employment duties at heights or in confined spaces. Additionally, you may prohibit employees who are under the influence of marijuana from performing any task that may be life-threatening to either the employee or other employees, or from performing any duty that could result in a public health or safety risk. These prohibitions will not be considered adverse employment decisions even if they have a financial impact on the employee.
As it stands, the Act does not provide many specifics regarding the policing of medical marijuana in the workplace. For example, it does not describe whether or how a drug test or other measures will be used to determine if an employee is under the influence of marijuana while at work. Additionally, the Act does not define what accommodation measures employers must take with respect to an employees’ use of marijuana outside of the workplace. Until further regulations are written or courts decide the intricacies of the law, employers are unlikely to have concrete guidance as to the proper handling of employees and marijuana in the workplace.
Although the Act legalizes the use of medical marijuana within Pennsylvania, federal law does not recognize marijuana as a legal drug, even for medicinal purposes. In fact, marijuana remains a Schedule I substance under the Controlled Substances Act meaning that it has no recognized legal use under federal law. As a result, patients using medical marijuana in compliance with Pennsylvania law will be in violation of federal law and could be prosecuted federally. However, the federal government has not prosecuted any individuals with small amounts of medical marijuana in any of the 23 states that adopted comprehensive medical marijuana programs.
Of course, employers are not required to violate federal law in order to comply with the Act. Therefore, if you are currently working in an industry subject to federal drug regulations, you should continue to abide by those federal regulations. Additionally, although the limits of the law are not yet clear, employers will remain subject to the Americans with Disabilities Act to some extent so we recommend that employee handbooks and any related policies are updated to reflect the new state of the law.
Burns White is happy to review and revise any documents or policies to ensure your compliance with the Act and other laws. If you have any questions about how to best protect your business, please do not hesitate to contact me or our employment team.
Summer law clerk George Bivens contributed to this post.