The Pennsylvania Medical Marijuana Act: Protections, Prohibitions & Pitfalls

Confusion persists regarding the scope of Pennsylvania’s six-year-old Medical Marijuana Act (“MMA”), which created legal protections for employees and applicants who obtain a medical marijuana certification.  Since its enactment, litigation involving employees and applicants invoking the protections of the MMA has steadily increased.  In many of these cases, the plaintiff alleges that the employer’s drug policy does not comply with the MMA or that the employer unlawfully took an adverse employment action against the plaintiff because the employer deemed the position to be “safety sensitive.”  Pennsylvania employers are well-served to review the MMA’s protections to minimize the risk of litigation.

The Pennsylvania Medical Marijuana Act’s Protections and Prohibitions

The MMA states that “[n]o employer may discharge, threaten, refuse to hire or otherwise discriminate 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.”  The MMA does, however, allow an employer to prohibit the use of medical marijuana while at work and to discipline an employee who is under the influence of marijuana when the employee’s conduct falls below the standard of care normally accepted for their position.  In addition, the MMA does not require an employer to take any action that would place the employer in violation of federal law.

The MMA’s other prohibitions are limited to situations when the employee is under the influence of medical marijuana at work, including:

• Being in physical control of chemicals that require a governmental permit;
• Working with high-voltage electricity or any other public utility;
• Performing employment duties at heights or in confined spaces;
• Engaging in tasks that the employer deems life-threatening to either the employee or any other employee; and,
• Participating in any duty which could result in a public health or safety risk.

Potential Pitfalls and Takeaways for Pennsylvania Employers

Pennsylvania employers should be aware that these five exceptions apply only when the employee is under the influence of marijuana while at work.  The MMA also does not define when an employee is considered to be “under the influence” of medical marijuana. 

Many Pennsylvania employers may not realize that the MMA does not include an exception for employees working in or applying for “safety sensitive” positions.  Although no court has issued a ruling on this particular issue, Pennsylvania employers may risk litigation for taking an adverse employment action against an employee working in or applying for a position that the employer deems “safety sensitive.”

Employers in Pennsylvania can take steps to reduce litigation risk involving the MMA, such as:

• Reviewing and updating workplace drug policies to comply with the MMA;
• Conferring with human resources or counsel before taking an adverse employment action against an employee with a medical marijuana certification; and,
• Ensuring compliance with the MMA when assessing an employee’s qualifications for a position that the employer determines to be “safety sensitive”

For Further Information:

If you have questions about this Alert or actions your business should take concerning employees or applicants with medical marijuana certifications or the Pennsylvania Medical Marijuana Act, please contact Benjamin Salvina, or any other member of our Labor & Employment Group.