Since Pennsylvania’s Medical Marijuana Act (MMA) was signed into law on April 17, 2016, the Department of Health has been busy implementing the Medical Marijuana Program. With dispensaries now open for business as of February 15, employers operating in the Commonwealth may soon experience the challenges this law presents particularly in regard to employment practices. Pennsylvania is no different than other states with regard to how this law may be interpreted through the court system and thus evolve over time. Below are some key points for employers to consider.
Medical Marijuana in PA – the basics…
Pennsylvania recognizes 17 medical conditions that medical marijuana can be used to treat. Some of the conditions where employees may continue to work include Inflammatory Bowel Disease including Crohn’s Disease, cancer pain, neuropathies, and chronic, intractable pain.
Medical marijuana can be taken in the following forms: pill; oil; topical gel, cream, or ointment; vaporization or nebulization; tincture; or liquid. It can be incorporated into edible form by a patient or caregiver to aid ingestion by the patient but it is unlawful to smoke medical marijuana.
So how similar are medical marijuana and recreational marijuana? Both have varying degrees of chemical compounds CBD (cannabidiol) and THC (tetrahydrocanniabinol). CBD is known for analgesic, anti-inflammatory and anti-anxiety properties unlike the psychoactive effects such as a “high” feeling that THC provides. Whereas the chemical content of recreational marijuana isn’t known, medical marijuana is subject to extensive testing and the exact chemical compounds are known. Unlike a recreational marijuana user, those using medical marijuana are monitored by a primary care physician and dosing physician or pharmacist. Recreational marijuana is most commonly smoked in its leaf form and contains terpenes, an aromatic compound, giving it a distinct odor. Medical marijuana doesn’t contain terpenes so there isn’t an odor.
The process for obtaining medical marijuana has several steps. A patient must be a state resident and under the care of a physician who is registered with the Department of Health. The physician must provide a signed certification to the patient, verifying a serious medical condition. The patient then must apply for an identification card, (valid for one year maximum) and issued by the Department of Health. ID cards must be presented at an authorized dispensary in order to purchase medical marijuana. Children under 18 must have an adult caregiver who must obtain a caregiver ID. While caregivers will have an ID card, they are not authorized to personally use medical marijuana. Please see www.pa.gov for more information.
Isn’t any kind of marijuana still illegal?? What does this mean for employers maintaining a “drug-free workplace”?
Despite Pennsylvania and other states enacting legislation to authorize use of medical marijuana, it is still classified as a Schedule 1 controlled substance under federal law, meaning that it is considered to have no medical benefits. Federal law preempts the Medical Marijuana Act for those employers subject to federally mandated, drug-free workplace programs, including CDL drivers and federal contractors. These employers can prohibit and not accommodate marijuana use in the workplace. They must also report all drug tests that are positive for marijuana. The implication is that employers required to comply with federal laws may be able to terminate employees for marijuana use as part of that compliance.
This begs the question….will a medical marijuana user test positive on a drug screen or test? The answer is yes. The problem is that testing methods can’t distinguish medical marijuana use from recreational use. Also, timing is an issue. The tests aren’t useful in determining when the use occurred (for example, weeks ago or more recently “under the influence” while on the job).
Employers do have certain rights under the MMA. For those with safety sensitive jobs and/or environments, employers may prohibit employees under the influence of medical marijuana from the following:
- Operating or being in physical control of government-controlled chemicals or high-voltage electricity or any other public utility.
- Performing duties at heights or in confined spaces.
- Performing any task which the employer deems life-threatening to either the employee or his / her coworkers.
- Performing any duty which could result in a public health or safety risk.
Furthermore, under the MMA, employers do not need to allow patients to use medical marijuana on their property or premises. Also, employers can discipline an employee “for being under the influence of medical marijuana 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.”
Despite these provisions, employers are advised to proceed with caution. The law does protect patients and caregivers and states that “no employer may 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 such employee’s status as an individual who is certified to use medical marijuana.” Furthermore, the underlying “serious medical condition” for MM patients may constitute a disability under the ADA or job protected leave under the FMLA.
How can employers prepare?
Employers would be wise to review existing policies and modify certain ones including anti-discrimination to account for medical marijuana status, substance abuse to address medical marijuana use, and drug testing to eliminate blanket, zero tolerance thresholds. It is also a good idea to discuss with the drug testing vendor how positive marijuana tests will be handled including how the Medical Review Officer (MRO) will discuss with the employee whether or not he/she has a valid state issued MM ID card.
Educate and train your managers regarding the MMA. Establish a procedure for how your company will respond to suspected impairment including documenting observable signs and removing bias. Document an employee’s performance or conduct as it relates to normal standards for the position.
Once again, accurate, up-to-date job descriptions will be helpful in determining those job-specific behaviors and normal standards of performance. They will also come to the rescue as part of the interactive process under the ADA in exploring whether a job accommodation may be appropriate for an employee who presents a valid MM ID card.
Employers must recognize the potential risks the MMA presents to their workplace. Given the changing laws, it is always advisable to seek legal counsel regarding your employment needs. For more information, click here for additional material from Pillar+Aught. If you have any questions, please contact Suzanne Sentman, SPHR, Human Resources Director with McKonly & Asbury at firstname.lastname@example.org.