Pennsylvania Is Legalizing Medical Marijuana: What Employers Need to Know

By Eric B. Meyer

Pennsylvania is about to become the second Commonwealth in the United States to legalize medical marijuana. (23 states — la di da, states — plus the District of Columbia currently allow it)

Does this mean that employees with migraines can puff vape pens and eat Cheetos in your break rooms at work? Actually, I’m pretty sure that’s not how it works.

What’s the latest on this medical marijuana law?

Writing at PennLive.com, David Wenner reports that the Pennsylvania House voted yesterday to approve this bill legalizing medical marijuana. The vote was 149-46.

The Senate approved the original version of the bill last year. Then, it sat around for a while before gaining momentum in March of this year. And, after some amendments and yesterday’s House vote, all that left is for Gov. Tom Wolf to sign the bill, which he’s expected to do.

How will it impact employers?

Here’s what it says about employment:

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.

Nothing in this act shall require an employer to make any 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.

Nothing in this act shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of federal law.”

I’m getting some mixed signals here. On the one hand, you can’t discriminate “solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.” (my emphasis). This suggests that you can discriminate for other reasons, such as actual use of medical marijuana.

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However, then it says “Nothing in this act shall require an employer to make any accommodation of the use of medical marijuana on the property or premises of any place of employment.” (my emphasis). This suggests that you may have to accommodate the use of medical marijuana outside of work — unless the employee shows up to work under the influence.

Hmmm…

What should Pennsylvania employers do?

  1. If you operate in an industry where the law forbids you from employing people with Schedule 1 drugs in their system, then, this new law doesn’t change that. Continue doing what you’re doing.
  2. Other employers should educate their workforce about the new law, once it takes effect.
  3. An employee taking medical marijuana will have an underlying ADA disability. So, encourage medical marijuana users to initiate an interactive dialogue to discuss workplace accommodations for the underlying disability.
  4. I recognize that the Americans with Disabilities Act does not protect illegal drug use. But, the ADA carves out the “use of a drug taken under supervision by a licensed healthcare professional.” While some courts have taken a hard line against accommodation of medical marijuana, the law is still developing. So, consider treating medical marijuana as you would other prescription drugs, and refer back to Tip No. 3 above.

Read some of my other posts about medical marijuana and the workplace. Here, here, and here.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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