Employee Drug Testing

Pennsylvania’s much-anticipated Medical Marijuana Act was signed on April 17, 2016, legalizing medical marijuana in the Commonwealth for certain serious medical conditions, but raising many questions about drug testing in the workplace. Because more than half of all employers drug-test their employees, questions have sprouted in the wake of the law’s passage.

While specific or more complex questions can be directed to your attorney, most labor and employment attorneys are advising employers that they are not required to make immediate changes to their drug and alcohol policies or how they deal with drugs in the workplace. Still, they advise employers to track possible changes to the law and pending court cases and recently issued decisions.

Several sections of the law address the topic of medical cannabis in the workplace.

Pennsylvania’s law contains an employment anti-discrimination provision that states that employers may not “discharge, threaten, refuse to hire or otherwise discriminate or retaliate against any 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.”

Although more than half of all states in the U.S. have legalized medical marijuana, Pennsylvania’s protection of users seemingly refers only to individuals certified under Pennsylvania law, leaving unresolved questions about protections for out-of-state employees.

While employees who use medical marijuana in Pennsylvania are protected, it is important to note that employers are not required to accommodate the use of medical marijuana at work. Employers also keep their ability to discipline employees for using marijuana at work.

The law says that: “Nothing in this Act shall require an employer to make an accommodation for 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.”

While employers retain the right to discipline users, the definition of “under the influence” is still a work in progress.

The law also prohibits certified users from performing certain safety-sensitive jobs while “under the influence” of medical marijuana, including: (1) operating or being in physical control of chemicals which require a permit issued by the federal government, state government, federal agency or state agency; (2) operating or being in control of high-voltage electricity or any other public utility; (3) performing any employment duties at heights or in confined spaces, including, but not limited to, mining; (4) performing tasks that the employer deems life-threatening to either the employee or any employees of the employer; and (5) performing any duty that could result in a public health or safety risk.

Act 16 of 2016 does not require employers to “commit an act that would put the employer or any person acting on its behalf in violation of federal law.” For example, an employer would not be required to accommodate medical marijuana use if it violates federal Department of Transportation regulations.

In addition, the law does not trump an employer’s rights under the Americans with Disabilities Act (ADA). For example, under the law, employers are not prohibited by the ADA from discharging an employee who tests positive for marijuana, even if the use is related to a valid prescription. This could change, however, as Pennsylvania’s law and regulatory framework evolve and as “under the influence” is defined in Pennsylvania.

Further, the Equal Employment Opportunity Commission may change its position on the protected nature of medical marijuana as more states permit its usage.

The law and regulations are expected to grow and change as this new program is implemented, but for complicated legal questions about an employee and your job, it is highly recommended that you seek expert legal advice.