Medical Marijuana in the Workplace

By Shelby Krzastek and Lev Craig

On May 17, 2016, the Medical Marijuana Act (MMA) took effect in Pennsylvania. The MMA allows patients with certain serious medical conditions—including HIV/AIDS, autism, cancer, and post-traumatic stress disorder—to use marijuana in pill, oil, vapor, liquid, tincture, or topical form to treat their symptoms. Once the MMA is fully implemented in early 2018, Pennsylvania residents with an approved medical condition will be able to apply for a medical marijuana ID card issued by the Pennsylvania Department of Health, which will allow them to legally obtain marijuana for medical use. While the MMA has received praise from many Pennsylvania residents, the act also creates new challenges for employees who become certified to use medical marijuana under the MMA.

Although a growing number of states have legalized marijuana use, marijuana remains illegal under federal law, where it is classified as a Schedule I controlled substance under the Controlled Substances Act. Because marijuana is illegal under federal law, employers are not required to allow employees to use medical marijuana as a reasonable accommodation under the Americans with Disabilities Act. In addition, workplaces that are federally mandated to be drug-free—such as federal contractors and certain safety-sensitive industries—require employees to report positive marijuana test results, even if an employee’s use of marijuana is for medical purposes. As a result, if an employee tests positive for marijuana use, the employer may terminate the employee for failing to comply with drug-free workplace policies.

Section 2103(b)(1) of the MMA mandates that an employer may not “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.” However, the MMA does not require employers to allow employees to use medical marijuana in the workplace, nor does it “limit an employer’s ability to discipline an employee … 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.” § 2103(b)(2). The act also allows employers to prohibit an employee from performing any task which the employer considers life-threatening or which could result in a public health or safety risk while under the influence of marijuana. Under the MMA, these employer-instated restrictions cannot be deemed an adverse employment action—even if the restriction financially harms the employee. In other words, an employee’s medical marijuana use or certification alone is not a sufficient condition to take adverse action against an MMA-certified employee.

Employees who use medical marijuana may struggle to exercise their rights under the MMA while still adhering to their employer’s drug policies. As the MMA does not require employers to allow employees to use medical marijuana in the workplace as an accommodation, employees may find themselves forced to choose between taking an essential medication and complying with their employer’s drug-related workplace policies. Employers must address medical and recreational marijuana use in their drug use and drug testing policies and should clearly communicate their rules to both current and prospective employees.

New York, like Pennsylvania, allows individuals with certain serious medical conditions to legally obtain medical marijuana. Under New York state law, an employer may not refuse to employ or “otherwise penalize a person solely for that person’s status as a certified patient or designated caregiver.” If your employer has discriminated against you because you are certified to use or obtain medical marijuana, please contact The Harman Firm, LLP.