Medical marijuana is currently legal in 37 states—including Pennsylvania. The Commonwealth of Pennsylvania legalized the use of medical marijuana in 2016 when it adopted the Medical Marijuana Act (“the Act”), which legalized the prescribed medical use of marijuana for certain chronic conditions.
On September 24, 2024, the City of Pittsburgh passed an ordinance prohibiting discrimination against an individual’s status as a medical marijuana patient while also setting parameters for employers when it comes to drug testing (“the Ordinance”).
As a preliminary matter, the Ordinance identifies a medical marijuana patient as “an individual who has a serious medical condition, disability, or handicap such that qualifies them for medical marijuana use and who is certified under the Pennsylvania Medical Marijuana Act of 2016 to access marijuana for a certified medical use.” Accordingly, the Ordinance only protects individuals who have qualified for and received a medical marijuana card under the Act. The Ordinance protects medical marijuana patients by prohibiting discrimination in hiring or employment against any employee or prospective employee because of the individual’s lawful status as a medical marijuana patient.
Additionally, the Ordinance prohibits pre-employment drug testing for marijuana for candidates who hold valid Pennsylvania medical marijuana cards. It also limits employers’ ability to test employees who hold Pennsylvania medical marijuana cards during the course of employment for marijuana absent reasonable suspicion of use or impairment at work. However, the Ordinance outlines exceptions to the general prohibition on marijuana drug testing for certain industries or safety-sensitive job positions. For example, the testing prohibition does not apply to the following individuals: (1) those working in positions subject to drug testing due to regulations issued by the U.S. or the Pennsylvania Departments of Transportation; (2) those working in a position that requires carrying a firearm; or (3) any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants. When compared to the Pennsylvania Medical Marijuana Act, the Ordinance sets forth fewer exceptions to the testing prohibition.
The Ordinance also closely tracks the Act by allowing employers to take action against medical marijuana patients under the influence of medical marijuana if a test shows more than 10 nanograms of active tetrahydrocannabinol per milliliter in their blood if they are operating or are in control of chemicals requiring permits issued by the government or are operating or being in control of high-voltage electricity or public utilities. In addition, medical marijuana patients who are under the influence of medical marijuana may not perform any employment duties at heights or in confined spaces; perform tasks deemed by the employer to be life-threatening to the employee or to other employees of the employer; or perform any duty that could result in a public health or safety risk while under the influence of medical marijuana.
The Ordinance further permits employers to prohibit the use of medical marijuana in the workplace and to take disciplinary action against medical marijuana patients if they are working while under the influence of medical marijuana and their conduct falls below the standard of care normally accepted for their position. Employers can also drug test medical marijuana patients for illegal use of other controlled substances, conduct reasonable suspicion drug testing when there is reasonable cause to suspect an employee is under the influence of a drug at work, and perform drug tests after a workplace accident.
Importantly, the Ordinance was effective immediately upon adoption. Accordingly, employers that hire or employ workers in Pittsburgh should immediately make efforts to comply with the Ordinance and should consider reviewing and evaluating current policies and drug testing programs.
