Action item: Governor Tom Wolf is expected to sign legislation on Sunday, April 17, that will legalize medical marijuana in Pennsylvania. The new law also prohibits discrimination against certified users of medical marijuana, but does not require employers to accommodate medical marijuana use. Pennsylvania employers should assess their hiring and employment policies to ensure compliance with this new law.
Pennsylvania will become the twenty-fifth state (plus the District of Columbia) to legalize or decriminalize medical marijuana. These laws have created a hazy landscape for employers. Some states prohibit discrimination against medical marijuana users, other states affirmatively require accommodation of medical marijuana use, and still other states provide no guidance to employers. Federal law adds another level of complexity by prohibiting the use of marijuana for any purpose.
The Pennsylvania law legalizes the use (and ultimately the regulated sale) of marijuana in pill, oil, or ointment form by authorized patients suffering from a list of approved medical conditions. For employers, the law prohibits adverse action against employees or applicants who are certified to use medical marijuana. However, the law does not require employers to accommodate medical marijuana use at the workplace and does not restrict an employer from disciplining an employee who is under the influence of medical marijuana “when the employee’s conduct falls below the standard of care normally accepted for” the employee’s position. The law also does not require an employer “to commit any act that would put the employer or any person acting on its behalf in violation of federal law.”
Pennsylvania employers should review their hiring and employment policies to avoid chronic problems under the new law. For example, employers with zero-tolerance drug testing policies should consider adjusting those policies to allow a case-by-case assessment of positive marijuana tests by employees or applicants who are certified medical users. While the new Pennsylvania law does not directly address off-the-job marijuana use, employers must exercise care before disciplining an employee for a positive marijuana test where there is no evidence of on-the-job impairment or refusing to hire an applicant who tests positive for marijuana in a pre-employment screening. In addition, employers must continue to consider whether an employee certified to use medical marijuana may be subject to further protection under the Americans with Disabilities Act.