...
Summary of differences between federal and state regulations
Medical marijuana
Pennsylvania’s medical marijuana law establishes a medical marijuana program for patients suffering from serious medical conditions. The drug may only be dispensed in certain forms and cannot be smoked.
An employer may not 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 the employee’s status as an individual certified to use medical marijuana.
An employer is not required to accommodate the use of medical marijuana in the workplace. An employer may discipline an employee for being under the influence of medical marijuana or for working while under the influence of medical marijuana if the employee’s conduct falls below the standard of care normally accepted for that position.
A patient may not operate or be in physical control of any of the following while under the influence with a blood content of more than 10 nanograms of active THC per milliliter of blood in serum:
- Chemicals which require a permit issued by the federal government or a state government or an agency of the federal government or a state government, or
- High-voltage electricity or any other public utility.
A patient may not perform any employment duties at heights or in confined space.
A patient may be prohibited by an employer from performing any task which the employer deems life-threatening, to either the employee or any of the employees of the employer, while under the influence of medical marijuana.
A patient may be prohibited by an employer from performing any duty which could result in a public health or safety risk while under the influence of medical marijuana.
Courts have ruled that:
- The state’s medical marijuana law provides for a private right of action and employees can bring lawsuits under law.
- Medical marijuana patients can file lawsuits against employers because of the law’s anti-discrimination protections.
- The law does not mandate accommodation of marijuana use.
- An employee with a medical marijuana card who is fired for a failed drug test may qualify for unemployment benefits.
Court case: Right of Action
In Palmiter v. Commonwealth Health Systems (November 22, 2019), a county court ruled that employees can bring lawsuits against employers under the state’s medical marijuana law.
An employee was fired for testing positive on a workplace drug test and claimed that she was wrongfully discharged under the state’s Medical Marijuana Act. The employer argued that the act did not allow employees to bring lawsuits against their employers.
The court disagreed with the employer, ruling that employee lawsuits are permitted under the act. While the state’s Medical Marijuana Act does not explicitly allow employees to file lawsuits against their employers, a private right of action is implied in the statute because of its anti-discrimination directive.
Employers in Pennsylvania should be aware that there is a risk of a lawsuit if a medical marijuana user is disciplined or terminated because of medical marijuana use.
Court case: Right of Action
The U.S. District Court for the Eastern District of Pennsylvania ruled in Hudnell v. Thomas Jefferson Univ. Hospitals, Inc. that a medical marijuana patient has an implied right of action and can bring a lawsuit against an employer for failing to follow anti-discrimination provisions.
In this case, an employee sued after being fired following a positive test for marijuana. The employee had a valid medical marijuana card, but it was expired when she took the test.
Pennsylvania’s Medical Marijuana Act includes employment discrimination protections for patients. While the law describes an employee’s protections, it does not come out and say that an employee can sue if those rights are violated.
The employer in this case argued that the law did not give employees a private right of action, that is, the right to take a company to court for failing to follow the law. The employer also argued that the statute did not apply to this situation because the employee did not have a valid medical marijuana card when she was tested for drugs.
The court disagreed and decided that Pennsylvania’s Medical Marijuana Act does imply a right of action, for a few reasons:
- Pennsylvania lawmakers intended to protect medical marijuana patients from discrimination,
- The state’s medical marijuana law does not give a state agency the power to enforce the law’s anti-discrimination provisions,
- If a patient did not have the right to bring a lawsuit, the anti-discrimination protections, would “ring hollow.”
The court allowed the case to move forward, as the employee alleged that she legally purchased and used medical marijuana, let her employer know about her status as a medical marijuana cardholder, failed a drug test at work, and was fired.
The court did not determine whether or not the employee’s firing was justified. However, given the decision, employers should carefully consider actions taken against a medical marijuana patient that are based only on a positive test for marijuana.
Hudnell v. Thomas Jefferson Univ. Hospitals, Inc., Civil Action No. 20-01621, 09/25/2020
Court case: Accommodation
In Harrisburg Area Community College v. Pennsylvania Human Relations Commission, the Commonwealth Court of Pennsylvania ruled that the state’s Medical Marijuana Act does not require a college to allow a student to use medical marijuana.
The case provides valuable insights into the issue of medical marijuana use as an accommodation.
In this case, a nursing student asked a college to allow her to use medical marijuana as an accommodation for her disabilities. The school denied the request, as it was the college’s policy to remove students from the nursing program if they tested positive for an illicit substance.
The student filed a claim with the Pennsylvania Human Rights Commission. The college said the Pennsylvania Human Rights Act and Pennsylvania Fair Education Opportunities Act did not require accommodation of marijuana use.
The court agreed with the college, ruling that the acts do not require employers to accommodate medical marijuana use in the workplace. In addition, an employer may prohibit an employee from performing any duty that could result in a public health or safety risk while under the influence of medical marijuana.
Although this case involves a student and college rather than employee and employer, it provides insight into the issue of accommodation for use of medical marijuana. Employers are not required to allow the use of medical marijuana in the workplace, and can prohibit employees from performing a job that could result in a safety risk while under the influence of medical marijuana.
Harrisburg Area Community College v. Pennsylvania Human Relations Commission, October 29, 2020
Court case: Unemployment benefits
A Pennsylvania Appeals Court ruled that a medical marijuana patient who was fired for a positive drug test could receive unemployment benefits.
The employer had a policy prohibiting employee use of illegal substances. However, the employee was not aware he would be fired for using lawfully prescribed medical marijuana.
In addition, the employer had a policy of excusing positive drug test results when an employee presented a prescription to the medical review officer.
In this case the employee presented a medical marijuana patient identification card to the MRO.
The employee was granted unemployment benefits because the employer’s policy was not clear with regard to medical marijuana. The employee’s use of medical marijuana was legal under state law and he complied with the request to provide a valid medical prescription after the drug test.
The Pittsburgh Water and Sewer Authority v. Unemployment Comp. Bd. of Review, November 18, 2020
Recreational marijuana
Pennsylvania has no state statutes regarding recreational marijuana.
Philadelphia pre-hire marijuana testing
In Philadelphia, it is unlawful for employers to require a pre-employment marijuana test as a condition of employment except for those applying for work in the following jobs:
- Police officer or other law enforcement positions;
- Any position requiring a commercial driver's license;
- Any position requiring the supervision or care of children, medical patients, disabled or other vulnerable individuals;
- Any position in which the employee could significantly impact the health or safety of other employees or members of the public.
The city ordinance does not apply to drug testing required under federal or state law, a union contract, or a federal contract or grant.