Executive Summary
Overview: Pennsylvania has joined the growing list of states legalizing the use of marijuana for medicinal purposes. On April 17, 2016, Pennsylvania enacted its Medical Marijuana Act (the “Act”) and, although the law took effect on May 17, 2016, the State’s Department of Health must now go through the process of creating and implementing a regulatory program before its constituents can begin dispensing and using medical marijuana. That process is expected to take between 18 and 24 months.
Effective Date: Effective May 17, 2016. Regulatory Program expected in 18-24 months.
The Details
Pennsylvania’s Act permits patients suffering from ALS, autism, cancer, Crohn’s disease, nerve damage, epilepsy, glaucoma, HIV/AIDS, Huntington’s Disease, inflammatory bowel syndrome, intractable seizures, multiple sclerosis, Parkinson’s disease, post-traumatic stress disorder, severe chronic or intractable pain and sickle cell anemia to use marijuana for medicinal use. The Act also clearly allows marijuana to be dispensed only in the following forms: pill, oil, topical forms (including gel, creams or ointments), vaporization or nebulization, tincture or liquid. Smoking marijuana is not permitted under the law.
Employment Protections
Like medical marijuana legislation in some other states (Arizona, Connecticut, Delaware, Illinois, Minnesota, New York and Rhode Island), the law in Pennsylvania contains a broad anti-discrimination provision:
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.
Despite the antidiscrimination protections contained in the law, the law is clear that employers need not accommodate the use of marijuana at work and may discipline employees who are “under the influence” of marijuana at work as set forth below:
Nothing in this Act shall require an employer to make an 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.
Also, nothing in the Act requires an employer to commit an act that would put the employer or any person acting on its behalf in violation of federal law.
Safety-Sensitive Positions
The Act permits an employer to implement restrictions consistent with the following prohibitions:
- A patient may not operate or be in physical control of any of the following while under the influence with a blood content of more than 10 ng/ml: (1) chemicals which require a permit issued by the federal government, state government, federal agency or state agency; or (2) high-voltage electricity or any other public utility.
- A patient may not perform any employment duties at heights or in confined spaces, including, but not limited to, mining while under the influence of medical marijuana.
- A patient may be prohibited by an employer from performing any task which the employer deems life-threatening, to either the employee or any of the employees of the employer, while under the influence of marijuana. The prohibition shall not be deemed an adverse employment decision even if the prohibition results in financial harm for the patient.
- A patient may be prohibited by an employer from performing any duty which could result in a public health or safety risk while under the influence of medical marijuana. The prohibition shall not be deemed an adverse employment decision even if the prohibition results in financial harm for the patient (Emphasis added).
Practical Considerations for Employers with Safety-Sensitive Positions
Unlike the law in Arizona (which permits employers to refuse to “place” (i.e. hire) a medical marijuana user who tests positive during a pre-employment drug screen in a safety-sensitive position), Pennsylvania’s law does not permit a refusal to hire, but rather, permits employers to prohibit workers who are under the influence from performing tasks or duties that are safety sensitive. The law does not, however, define, under the influence.
While the law technically went into effect on May 17th, Pennsylvania is not expected to begin issuing medical marijuana cards or dispensing medical marijuana until very late 2017/2018. The employment-related provisions of the law will not impact employers until then (as employees/applicants can't be medical marijuana cardholders unless the State is issuing medical marijuana cards).
The Department of Health has until November 16, 2016 to issue regulations implementing the certification/dispensary process. While these regulations should provide a clearer timeline, it is anticipated it will be at least another year before those regulations are implemented and the State begins issuing medical marijuana cards.
Administration of drug testing program is complicated by the passage of this new law. Please contact your Human Resources Business Partner with any questions. If you participate in the ADP TotalSource Drug Free Workplace Program, please contact our ADP TotalSource Drug Free Workplace Administrator for additional guidance.
This content provides practical information concerning the subject matter covered and is provided with the understanding that ADP is not rendering legal advice.