Pennsylvania’s Medical Marijuana Act was enacted in May 2016 (the “Act”). Under the Act, patients with serious medical conditions, such as cancer, HIV/AIDS, Parkinson’s Disease, Multiple Sclerosis, and severe chronic or intractable pain, are authorized to use medical marijuana to treat their condition after obtaining a certification from a physician and an identification card issued by the Pennsylvania Department of Health. Medical marijuana may only be issued to an individual or an individual’s caregiver who has received the certification and identification card. Medical marijuana may not be smoked and may only be dispensed in certain enumerated forms.
The Act imposes certain prohibitions on Pennsylvania employers. An employer may not “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.” However, an employer is not required to accommodate the use of medical marijuana at the employee’s place of employment. Further, an employee may be disciplined if their use of medical marijuana affects their job performance. Additionally, employers can restrict employees under the influence of medical marijuana from performing work in certain dangerous conditions.
While the Commonwealth of PA is still in the process of accepting applications for growers/processors and dispensaries, employers should begin to consider the practical concerns that will arise once medical marijuana becomes available. For example, many employers will be faced with the challenge of determining whether an employee’s performance is affected because that person is actually under the influence of marijuana while on the job, or for another reason, and what action to take. Another important consideration for employers will be whether and how to revamp their drug-related policies, including how to handle positive drug tests.