Medical marijuana is now legal in Pennsylvania. The Pennsylvania Department of Health will have temporary regulations implementing the Pennsylvania Medical Marijuana Act (the “Act”) in place this year. Employers in Pennsylvania will soon have employees who are certified to use medical marijuana. This has the potential to raise a host of new issues for employers. The Act contains a number of provisions that deal with the employment relationship and provides some guidance for employers in dealing with employees or prospective employees who are medical marijuana users.
The Act generally prohibits an employer from discriminating or retaliating against an employee based solely on the employee’s status as a certified medical marijuana user. Nevertheless, the Act allows employers to limit the use of medical marijuana in the workplace. For example, an employer is not required to make any accommodation for the use of medical marijuana on the property or premises of any workplace. In addition, the Act specifically provides that it 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 is below the standard of care normally accepted for the employee’s job. HOWEVER, the act does not define what “under the influence” means. Furthermore, the Act states that it does not require an employer or any person acting on the employer’s behalf to commit any act that violates federal law.
The Act does allow employers to impose certain limitations on employee’s who use medical marijuana. For instance, the Act provides that an employer may prohibit an employee who is a medical marijuana user from performing, while under the influence of medical marijuana:
- any task that the employer deems life-threatening to either the employee or any other employees of the employer; and
- any duty which could result in a public health or safety risk.
In addition, the Act provides that a medical marijuana user may not:
- perform any employment duties at heights or in confined spaces while under the influence of medical marijuana; and
- operate or be in physical control of chemicals which require a permit issued by the federal or state government, high voltage electricity. or any other public utility while under the influence of medical marijuana with a blood content of more than 10 nanograms of active tetrahydrocannabis per milliliter of blood in serum.
Furthermore, the Act does not prohibit imposing penalties for acts done while under the influence of medical marijuana that would otherwise constitute negligence, professional malpractice or professional misconduct.
This new law raises many questions for employers who may have to deal with employees using medical marijuana. Regulations that will be issued by the Department of Health may provide some additional guidance. In any case, employers should consult with their employment counsel when they deal with issues related to an employee who is certified to use medical marijuana. If you would like more information on this issue, please contact Eric J. Schreiner at (215) 496-7217 or eschreiner@kleinbard.com.