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It’s time for employers to review workplace marijuana policies
By: Christopher J. Knight, Esq.
Marijuana use by workers has long been considered a firing offense by many employers across the United States, including here in Pennsylvania. The fact that using or possessing marijuana has been a crime under both federal and state laws for nearly half a century has made it easy for companies to justify testing applicants and employees for marijuana use as part of routine screening, and to refuse to hire them, or to fire them, based on a positive test. The law was almost totally on the side of the employer and courts protected them in such situations. Federal law even specifically requires that certain government contractors and grantees maintain a “drug-free workplace” as a pre-condition of entering a contract or receiving a grant from the federal government[1] and marijuana’s classification as a “Schedule I” controlled substance under federal law makes it one of the prohibited “drugs” for those contractors and grantees.
But things are changing, fast, with the wave of legalization of medical marijuana sweeping the country in recent years, and even the legalization of “recreational” marijuana in some states. Workers in most states can now legally possess and consume marijuana if they follow their state’s laws and the federal authorities have so far mostly “looked the other way” and stopped prosecuting marijuana possession when state laws allowing it are followed. In Pennsylvania, the legalization of medical marijuana has led to the certification of tens of thousands of patients so far (and more every day) to legally possess and use marijuana to treat a host of diseases and medical conditions.
This wave of legalization calls those long-standing “zero tolerance” drug policies in to question and creates a host of new legal questions and conflicts that will likely take decades to resolve. The fact that Pennsylvania’s medical marijuana law includes forward-looking sections designed to specifically protect medical marijuana patients from employers acting against them is helpful to workers[2], but also creates even more legal questions and conflicts with federal laws, potentially adding to the growing confusion.
As a result, employers and workers alike are now asking – or should be – what rights they have and whether employers will need to adjust their policies and practices. The questions are many, including:
- Can employers still require candidates to take and pass a marijuana screening as a condition of hiring?
- Can employees still be subjected to random marijuana testing, and be disciplined or terminated for a positive test?
- Does a medical marijuana certification protect employees from such actions?
- What are an employer’s rights if medical marijuana patients test positive due to detectable amounts remaining in their bodies, but are not using or impaired at work?
- How should employers respond when the legal medical use of marijuana results in some impairment of physical or mental function during work hours?
- Does an employer’s liability or workers’ compensation insurance require it to prohibit workers from being under the influence of marijuana at work?
- What is an acceptable level of detectable marijuana in a worker’s system and does it matter whether they are a medical marijuana patient?
- Can medical marijuana patients bring wrongful termination actions against employers who fire them for marijuana use?
The answers to these questions depend heavily on the specific facts and circumstances and require close legal analysis on a case-by-case basis. For example, a driver operating a federally regulated tractor trailer across state lines is likely disqualified from using medical marijuana at all, while an office worker, retail salesperson or laborer who doesn’t operate heavy equipment, is certified to use marijuana for medical purposes and is never impaired at work, probably can’t be fired in Pennsylvania simply for using marijuana at home.
Even more legal questions arise when considering the protections afforded to workers with a qualifying medical disability under the Americans with Disabilities Act (“ADA”). Consider a worker with significant physical limitations from the effects of multiple sclerosis or cancer, for example. The worker is clearly protected from discrimination arising from disability under the ADA and an employer is required to provide them with “reasonable accommodations” to do their job within the limits of the disability. But what if the worker has also been certified by a doctor to use marijuana to treat their condition? Does the ADA protect such a worker from testing and discipline for using medical marijuana that’s administered legally, outside of work and under the direction of a doctor? Is an exemption from testing a required “reasonable accommodation” under the ADA? So far, courts have been reluctant to apply ADA protections in similar scenarios, since any use of marijuana remains a crime under federal law. But the law in this area is far from settled, continues to be tested in court and eventually may provide ADA protection to qualifying marijuana patients.
Now that we have officially entered an era of increasing marijuana legalization and acceptance, workplace rules and practices must continue to adapt. In the meantime, the many legal questions and individual issues have to be evaluated on a case-by-case basis. Cannabis Law Pa will continue to monitor and report on legal developments in this area and meanwhile encourages employers to take a cautious approach and have their practices reviewed by a competent medical marijuana lawyer.
[1] The Drug-Free Workplace Act of 1988 (41 U.S.C. Sec. 81).
[2] Pennsylvania’s Act 16 of 2016 includes the following provisions:
Employment.–
(1) No employer may 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.
(2) Nothing in this act shall require an employer to make any accommodation of the use of medical marijuana on the property or premises of any place of employment. This act shall in no way limit an employer’s ability to discipline an employee for being under the influence of medical marijuana in the workplace or 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.
(3) Nothing in this act shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of Federal law.
