Pennsylvania enacted legislation in 2016 for the lawful use of medical marijuana. (Medical Marijuana Act, 35 Pa.C.S.A. 1023.101 et seq.) (“the Act”). While the Act permits certain forms of medical marijuana to be dispensed, starting August 1, 2018, patients may qualify to use dry leaf medical marijuana. This change comes as Governor Wolf released a statement for recommendations to expand lawful medical marijuana to dry leave for vaporization, only, formalized in the May 12, 2018 Pennsylvania Bulletin.
Does that mean qualifying patients can start smoking pot in the office? No.
It is still unlawful to smoke medical marijuana. Furthermore, employers are not required to accommodate an employee to use medical marijuana on the property or premises of any place of employment. And while an employer is not to discriminate against an employee solely on the basis that the individual is certified to use medical marijuana, the Act does not limit an employer’s ability to discipline an employee when the worker is under the influence of medical marijuana and his/her conduct falls below accepted standards of care.
Because the recent expansion of Pennsylvania’s medical marijuana regulations, including qualifying conditions, could result in more medical marijuana users in the workforce, Pennsylvania employers should know how the law applies to them. For example:
- Federal employees and federal contractors must follow the federal laws, which preempts the Act. All other Pennsylvania employers must follow the Act.
- An employer may not discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee solely because the employee is certified to use medical marijuana.
- An employee certified to use medical marijuana may not engage in numerous work-related activities while under the influence of medical marijuana, including controlling certain chemicals, working with high voltage electricity, and working at heights or confined spaces.
- An employer may prohibit a certified employee from performing any task that the employer deems life threatening to the employee or any of the employees while under the influence of medical marijuana. Such a prohibition is not to be deemed as an adverse employment decision, even if it results in financial harm to the employee.
- An employer may discipline an employee for working while under the influence of medical marijuana when the employee’s conduct falls below the acceptable standard of care.
The Act provides certain protections for both the employee and employer. However, an employer should be aware of the potential conflict with their obligation to reasonably accommodate employees with qualifying conditions under the American’s with Disabilities Act and the Pennsylvania Human Rights Act.
If you have any questions as to how the Medical Marijuana Act impacts an employer’s or employee’s employment rights, contact Siana Bellwoar.
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