Question: I handle various HR duties for a local service company and was recently asked if our company’s longstanding “zero tolerance” drug testing policy applies to employees who have been prescribed medical marijuana. The owner of the company maintains that nobody in the company is exempt, and has since asked me to address this, along with a few other policy updates, in a Memorandum to be signed by all employees. I know we’re not the first local company with a strict zero tolerance policy facing this issue; can you help clarify our obligations in regard to this new legislation?

Answer provided by: Joseph A. McNelis, III, Esq. from the law firm of Fox Rothschild, LLP

As you note, you are certainly not the only company concerned about the legalities associated with the enforcement of drug policies in light of the recent passing of the Medical Marijuana Act. To address these concerns, I provide a bit of background and look more closely at what the legislation provides to help HR professionals like you navigate this complicated terrain.

Governor Tom Wolf signed the Pennsylvania Medical Marijuana Act in April 2016, and dispensaries began selling medical marijuana in February 2018.Patients with a “serious medical condition” (currently, 21 conditions are covered, including cancer, epilepsy, PTSD, Autism, and Opioid Use Disorder) can now use marijuana obtained from a licensed dispensary in the state to treat those conditions. Over 80,000 Pennsylvanians now have a Medical Marijuana ID card, some of whom might be your employees. Because marijuana remains illegal under federal law, this developing area of the law creates unique questions and challenges for businesses.

Does the Medical Marijuana Act Apply to Employers?

Yes. Section 2103 of the Act, entitled “Protections for patients and caregivers,” states that employers may not discriminate or take an adverse action against an employee “solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.” That provision goes on to state, however, that employers are not required to accommodate an employee’s possession or use of marijuana on their premises, and are not prohibited from disciplining an employee found to be “under the influence of medical marijuana in the workplace.” Section 510 of the Act allows an employer to prohibit employees from completing tasks which the employer deems life-threatening, or which pose a public health or safety risk while the employee is “under the influence” of marijuana.

The law does not define what it means to take an employment action “solely” on the basis of an individual’s status as a medical marijuana user, or what it means to be “under the influence.” While this poses a challenge for employers, this perceived gap in the law also provides an opportunity for employers to craft policies which are feasible, fair, and compliant with state law.

[uam_ad id=”54865″]

Can I Still Maintain My “Zero Tolerance” Policy?

An important consideration for employers is the desire to maintain a safe and drug-free workplace, and employers should not abandon a legitimate drug testing policy that has those goals in mind.  The Act neither requires an employer to allow the use of cannabis on their premises, nor prohibits employers from implementing a drug testing policy. However, because the Act states that employers cannot take an adverse employment action “solely” due to an employee’s status as a medical marijuana user, employers should examine their existing drug testing policies, and particularly any “zero tolerance” policy. In doing so, employers should ensure the policy is (1) written, (2) published to employees/applicants, and (3) explicit about its purpose of maintaining a safe and drug-free workplace; and (4) clear about which is expected and required of employees. Any decisions made based on a positive drug test for marijuana should be preceded by an examination of the employee’s status under the Act, whether a reasonable accommodation is available, and whether the employee can perform the essential functions of their job.

Do I Have to Provide Reasonable Accommodations for Medical Marijuana Users?

Employers must also be mindful of the Pennsylvania Human Rights Act (PHRA), which (similar to Americans with Disabilities Act) prohibits employers from discriminating against employees with a disability or handicap, and requires employers to make “reasonable accommodations,” as long as the accommodation does not impose an “undue hardship” on the employer. Because individuals certified under the Act will have a “serious medical condition, they will likely qualify as being “disabled” under the PHRA.

Court decisions from other states in the early part of this decade emphasized marijuana’s illegal status under federal law and often found in favor of employers on this question. However, more recent cases highlight the applicability of state medical marijuana statutes, and the need for compliance by employers. For instance, recent decisions from Delaware, Massachusetts, Connecticut, and Rhode Island all came down in favor of medical marijuana users who were terminated or whose job offer was rescinded after testing positive for marijuana. A trend in these recent cases mentioned above involved situations where the employers appeared to make a decision based entirely on the employee’s positive drug test.

No Pennsylvania court has yet ruled on this question. However, after determining an employee has a qualified disability, employers would be wise to engage in an interactive process with the employee to determine if there is a feasible accommodation. An accommodation in this scenario might include allowing off-site use of medical marijuana that would not result in the employee being “under the influence” during work, or a period of short term leave during which the employee may use medical marijuana to treat their condition. This decision-making process should begin with a review of the employee’s job description and essential duties to determine if the position is one which is safety-sensitive or has public health implications. Before taking any adverse action, the employer should ensure that its decision is supported by the hardship in accommodating the employee, the employee’s inability to complete the job, or a decline in the employee’s performance, as opposed to the employee’s status as a medical marijuana user.

While the Medical Marijuana Act presents new challenges for employers, employers still have time to develop a plan for approaching the issue, one which should be coordinated with Human Resources and other management employees. Such a plan can ensure compliance with the law while maintaining a safe and drug-free workplace.

To arrange a free consultation with attorney Joseph A. McNelis, III, Esq., click here to email a Montgomery Bar Association LRS advisor now (LRS@montgomerybar.org), or call 610-994-3656 during regular business hours (Monday-Friday, 9 AM-4PM). If contacting us by phone, please be sure to mention this attorney’s name and how you heard.about us. Automated referrals to other Montgomery Bar Association member-attorneys in your area offering free or deeply discounted collaborative divorce consultations through our service are available Online anytime at RealLawyers.org.

More about this Montgomery Bar Association member-panelist:

Joe McNelis focuses his practice on the litigation of labor and employment matters and commercial disputes. He has extensive experience in wage-and-hour actions, as well as wrongful termination litigation and contract disputes. He regularly handles matters in the Pennsylvania state courts and in federal courts throughout Pennsylvania, New Jersey, and the Midwest.

Joe is also a member of Fox’s Cannabis Law Practice Group. He frequently writes and speaks about developments in the cannabis sector, and tracks legal issues in this highly regulated industry in Pennsylvania and nationwide. He is a member of the Pennsylvania Bar Association’s Medical Marijuana and Hemp Law Committee, where he leads the Employment Law Subcommittee.

Important Disclaimer – please read
Back to Ask a Real Lawyer

Submit your anonymous legal questions to AskARealLawyer@montgomerybar.org.
Look for answers here from one of our attorney panelists, and in Monday editions of MONTCO.TODAY!

[uam_ad id=”54875″]