Pennsylvania Marijuana Update: Accommodations and Pre-Employment Testing

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Summary

Two notable legal developments have occurred in Pennsylvania this fall related to marijuana use by employees.

The Upshot

  • The Pennsylvania Commonwealth Court held in a case of first impression that neither the Pennsylvania Human Relations Act nor the Pennsylvania Fair Educational Opportunity Act require institutions of higher education to accommodate medical marijuana legally prescribed pursuant to Pennsylvania’s Medical Marijuana Act. The court’s reasoning signals that employers also may not be required to accommodate an employee’s use of medical marijuana. The October 29, 2020 decision was in Harrisburg Area Cmty. Coll. v. Pa. Human Rels. Comm'n.

  • Philadelphia introduced an ordinance which would prevent most Philadelphia employers from conducting pre-employment testing for marijuana, with exceptions for certain positions—including workers who care for vulnerable individuals, workers who require a commercial driver’s license, and workers who might affect the public's safety and security. The ordinance, which was introduced November 12, 2020, also exempts from coverage drug testing required under state or federal law or by federal contracts or grants.

The Bottom Line

Legislation relating to medical and recreational marijuana by states and municipalities presents evolving challenges for employers. Employers should be cautious when making pre-employment and employment decisions involving marijuana use.

FULL ALERT

In a case of first impression, the Pennsylvania Commonwealth Court held on October 29, 2020, that neither the Pennsylvania Human Relations Act (PHRA) nor the Pennsylvania Fair Educational Opportunities Act (PFEOA) required a nursing school to accommodate a student’s use of medical marijuana. 

In Harrisburg Area Cmty. Coll. v. Pa. Human Rels. Comm'n, 2020 Pa. Commw. LEXIS 722 (Commw. Ct. Oct. 29, 2020), a nursing student requested as a reasonable accommodation to be exempt from the school’s drug testing policy due to her use of medical marijuana to treat her post-traumatic stress disorder and irritable bowel syndrome. The college refused her request, and the student filed a complaint with the PHRC. The PHRC denied the college’s motion to dismiss the complaint, and the college filed an interlocutory appeal to the Pennsylvania Commonwealth Court.

In reversing the PHRC’s denial, the court found that both the PHRA and the PFEOA prohibit discrimination by educational institutions on the basis of disability but exclude from the definition of disability “current, illegal use of or addiction to a controlled substance” as defined by the Federal Controlled Substances Act. Because marijuana is a controlled substance under federal law, the court reasoned that the school had no obligation to permit the use of medical marijuana as a reasonable accommodation under the PHRA or the PFEOA, even though it is legal under state law.

The case before the court considered the obligations of an educational institution to a student, but the court’s reasoning signals that employers may also not be required to accommodate an employee’s use of medical marijuana. 

Although Pennsylvania employers likely need not accommodate medical marijuana use, employers in Philadelphia may be prohibited from conducting pre-employment marijuana testing in the future. On November 12, 2020, Bill 200062500 was introduced. It would amend Title 9 of The Philadelphia Code by adding a new Chapter 9-4700 prohibiting employers from requiring many prospective employees to undergo testing for the presence of marijuana as a condition of employment.

Specifically, Chapter 9-4700 would prohibit any employer, labor organization, employment agency, or agent thereof from requiring a prospective employee to undergo testing for the presence of marijuana as a condition of employment. The Chapter exempts from coverage employees working as police officers or in other law enforcement positions, employees whose position requires a commercial driver’s license, any positions requiring the supervision or care of children, medical patients, disabled or other vulnerable individuals, and employees working in any position that could significantly impact the health or safety of other employees or members of the public.

The prohibition on testing for marijuana does not apply to testing required pursuant to:

  • federal or state statute, regulation, or order requiring drug testing of prospective employees for safety or security purposes;
  • any contract between an employer and the federal government or any grant of financial assistance which conditions receipt on drug testing prospective employees;
  • applicants whose prospective employer is party to a valid collective bargaining agreement that specifically addresses pre-employment drug testing.

The ordinance was introduced on the heels of legislation in several states, including New Jersey, that legalized recreational marijuana in 2020. In 2015, Pennsylvania passed the Medical Marijuana Act legalizing medical marijuana, but the state has not yet legalized recreational marijuana—though Pennsylvania Governor Tom Wolf has repeatedly urged legislators to legalize adult-use marijuana in the state. 

Practically speaking, the Philadelphia ordinance might not affect many businesses as employers have gradually moved away from pre-employment testing and the exemptions to the ordinance cover a number of employers and industries where testing is required and standard. However, employers would be wise to review their drug testing policies and protocols to ensure compliance with this ordinance should it become law. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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