Can a bistro in Pottsville, Pa. fire employees for using medical cannabis? Not anymore. On Tuesday, May 17, 2016, the Pennsylvania Medical Marijuana Act (SB-3) (“MMA”) went into effect, following Governor Tom Wolf’s signature last month (as previously reported here). Pennsylvania joins 24 other states, including New York, New Jersey and Connecticut, on the Pineapple Express. Along the way, employers will learn their ability to discipline employees for consuming medical marijuana on the job, for showing up to work under the influence of medical marijuana, and other unintended consequences that will bud from the law.
Overview of the Law
The MMA permits people diagnosed with a “serious medical condition,” and who meet the act’s certifications requirement to use medical marijuana. However, the MMA adopts a much more restrictive approach than many other state medical marijuana laws. Under the MMA, individuals certified to use medical marijuana cannot smoke it. They can only dose using a pill, oil, topical form, a form suitable for vaporization or nebulization, tincture or liquid. So blunts, bongs, and hookahs are out. But brownies baked with cannabis oil appear to be ok.
Impact on the Workplace
Under the MMA, employers are prohibited from threatening to discharge, discharging, refusing to hire or otherwise discriminating or retaliating against an employee because the employee is certified to use medical marijuana. Despite this robust protection for medical marijuana users, employers do not need to permit employees to use medical marijuana in the workplace.
Since medical marijuana use remains illegal under federal law, Pennsylvania employers need not accommodate employees under the Americans with Disabilities Act. Nor do they need to put themselves (or their agents) in a position that violates federal law — a provision that was likely intended to provide a safe harbor for federal contractors and heavily-regulated employers in sensitive industries. So the blunt truth is that employees who work in glass houses for the federal government probably still can’t get stoned.
The MMA hides several other employer-friendly provisions in the smoke.
- From our reading of the law, an employer may always discipline an employee if he or she is under the influence of medical marijuana while working. However, there is an alternate interpretation holding that employers can always discipline an employee for being under the influence in the workplace, but if employees are working under the influence of medical marijuana outside of the workplace (such as outside sales people), employers may only discipline those employees whose performance falls below the standard of care normally accepted for that position. Absent any further guidance by the legislature, the courts will likely decide which reading is correct.
- Employees under the influence of medical marijuana while working, regardless of whether they are in the workplace, are expressly prohibited from performing particularly sensitive jobs such as “any employment duties at heights or in confined spaces, including, but not limited to, mining” or working with certain chemicals and high-voltage electronics.
- Employers also have the option to prohibit employees who are under the influence of marijuana while working from: (1) “performing any task which the employer deems life-threatening, to either the employee or any of the employees of the employer”; or (2) “performing any duty which could result in a public health or safety risk.” This is true, even if the employee is working outside the workplace and the employee’s conduct does not fall below the standard of care normally accepted for that position. It remains to be seen what kinds of duties would fall under these categories. This provision may extend to employees that work with children, the elderly, and the mentally ill, and litigation is possible over the breadth of this provision. In either circumstance, the employer’s imposition of a limitation would not be considered an “adverse action” even if it resulted in a financial detriment to the employee.
Outlook for Employers
In light of the MMA, employers should make sure that they do not discriminate or retaliate against employees who use medical marijuana. However, employers may still prohibit employees from working under the influence of medical marijuana. Employers may also require a drug-free workplace and maintain a drug-testing program that provides accommodations for medical marijuana users. And certain federal contractors and other employers may still be able to exclude medical marijuana users from sensitive jobs (such as jobs where applicable statutes or regulations require employees to pass random drug tests).
Employers should also consider including provisions in its employee handbook about the use of medical marijuana, and develop specific policies regarding restrictions of particular duties for medical marijuana users. In administrating such policies, employers should take care not to divulge any personal medical information of the employee to people who do not need to know. For the most part, it should be sufficient to inform supervisors that the employee has a specific work restriction or needs a particular accommodation: rarely will a supervisor need to know that an employee is using medical marijuana. To that end, it may be preferable for employers to allow employees to go directly to Human Resources when requesting accommodations, by-passing their supervisors or managers.
Employers who do not tread carefully may find themselves in violation of the Pennsylvania Human Relations Act, as well as the non-retaliation provision of the MMA.