Pennsylvania’s recently passed Medical Marijuana Act (MMA) has left employers dazed and confused about whether they may continue to enforce zero tolerance drug policies. The MMA, which provides qualifying patients with access to medical marijuana through a safe and effective delivery method, is intended to balance patient need for access with patient safety. However, balancing these interests is not always an easy task, especially because marijuana remains an illegal substance under the Federal Controlled Substances Act. The attempt to balance patient access and safety, and the juxtaposition between state and federal law, can put employers in a sticky situation, particularly when it comes to establishing and enforcing zero tolerance drug policies.

For example, the MMA prohibits employers from discriminating against employees merely because they are certified users of medical marijuana. Section 10231.2103(b) of the MMA prohibits employers from discharging, threatening, refusing to hire, or otherwise discriminating or retaliating against an employee on the basis of the employee’s status as an individual who is certified to use medical marijuana. However, employers are not required to accommodate the use of medical marijuana on the premise or property of the employer. This means an employer can discharge any worker found in possession of, selling or smoking marijuana on company time or property.  Furthermore, the MMA does not 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. Section 510 of the MMA clarifies that “under the influence” means “with a blood content of more than 10 nanograms of active tetrahydrocannabis per milliliter of blood.” To comply with this section, employers should amend their drug testing policies to allow for marijuana testing with probable cause.

While these conflicting provisions may be intended to balance patient access and safety, they cloud the rights of the employer and the employee. For example, may an employer only enforce its marijuana policy if the employee has more than 10 nanograms of active tetrahydrocannabis per milliliter of blood?

Because the MMA does not prevent employers from conducting random drug testing nor does it require an employer to permit the use of medical marijuana on its property, it is likely that employers may continue to enforce their medical marijuana policies and discipline employees who are under the influence of marijuana in the workplace or whose conduct while under the influence of marijuana falls below the standard of care. However, Pennsylvania courts have yet to rule on this issue and therefore, the cloud of uncertainty remains.

We will continue to monitor how Pennsylvania Courts interpret the legislature’s balancing act, and how courts in other jurisdictions handle similarly worded statutes. Check back with the HR Legalists and the Health Law Gurus for updates.

This blog post was created through the joint efforts of the HR Legalist and the Health Law Gurus.

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If you would like more information on the licensing requirements for growers/processors, dispensary facilities, or laboratories, contact the Health Law Gurus.