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Summary of differences between federal and state regulations
Workers’ compensation
Pennsylvania’s workers’ compensation law states that compensation can be denied if an injury or death was caused by intoxication or the illegal use of drugs. The burden of proof is on the employer. In cases where the injury or death is caused by intoxication, no compensation may be paid if the injury or death would not have occurred had the employee not been intoxicated.
Unemployment insurance
Workers will be disqualified for failure to submit to and/or pass a drug test conducted pursuant to an employer’s established substance abuse policy, provided that the drug test is not requested or implemented in violation of the law or a collective bargaining agreement.
Pre-hire marijuana testing
It is unlawful for employers in Philadelphia to require a pre-employment marijuana test as a condition of employment. There are exceptions for certain safety-sensitive positions, including law enforcement positions and positions requiring a commercial driver’s license. There is also an exception for positions requiring care of children, medical patients, or disabled individuals.
Unemployment Board Case: CBD and Unemployment Insurance
In a 2020 case, the Pennsylvania Unemployment Compensation Board of Review ruled that an employee fired for using CBD was eligible for unemployment benefits after her employer failed to produce drug test results during unemployment proceedings.
The employee, who admitted to using cannabidiol (CBD) oil to treat cancer symptoms, was told that she failed a random drug test and was terminated. The employer cited the employee’s own admission as evidence but did not produce the drug test results during the proceedings.
The board ruled that the employer was unable to prove that the use of CBD oil would impact the employee’s ability to perform her job safely.
State
Contacts
Pennsylvania Bureau of Workers’ Compensation
Regulations
Workers’ compensation
Pennsylvania Statute Title 77, Chapter 5, Liability of Employers, In General, §431
Federal
Under the Improve Tracking of Workplace Injuries and Illnesses final rule, the Occupational Safety and Health Administration (OSHA) prohibits employers from using drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness.
Employers may conduct post-incident drug testing if there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness.
Contacts
Drug testing rules
U.S. Department of Transportation
Regulations
DOT drug testing rules
49 CFR Part 40
49 CFR Part 382
Drug-Free Workplace Act of 1988
United States Code at 41 U.S.C. 81
Guidance document