On May 17, 2016, Pennsylvania became the twenty-third state, along with the District of Columbia, to legalize the use of marijuana for the treatment of persons with serious illnesses. The full implementation of the Medical Marijuana Act (MMA) will not occur for some time. The Pennsylvania Department of Health (DOH) has been charged with the task of developing regulations for facilities to legally dispense medical marijuana. It may be several months before the regulations are in place, dispensaries are licensed, and the first medical marijuana patients are certified to purchase the drug.
Despite the time lag until full implementation, there are several aspects of the MMA’s impact on the workplace that employees and employers should take note of now. First, the MMA does not legalize smoking pot. Medical marijuana will be available only in the form of pills, creams, oils, and vapors. It will also be available only to those individuals whose physicians have certified them to be suffering from specific serious illnesses such as cancer, HIV/AIDs, and multiple sclerosis.
Second, the MMA does not permit even approved users of medical marijuana to use it at work or to be under the influence of medical at work. The MMA specifically states:
Nothing in the act shall require an employer to make any accommodation of the use of medical marijuana on the 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.
So if employers do not have to permit possession or use of medical marijuana at work and may discipline an employee for being under the influence of marijuana, what real change does the law have on the workplace?
For starters, employers should anticipate some creative plaintiffs’ lawyers will argue that the above language does not permit discipline in circumstances where the employee, though perhaps “under the influence,” remains able to effectively perform his job. Only time and litigation will tell. The more difficult aspect of implementation may occur with an employer’s random drug testing program. A positive test for cannabis may not necessarily, in and of itself, be a basis for discipline or discharge of an employee as it was prior to the law’s enactment. However, persons approved for marijuana use will receive a state issued ID card. If an employee cannot produce a state ID card to verify approval for medicinal use, the employer should be able to discipline the employee the same as any other employee under a zero tolerance drug and alcohol policy.
The MMA also prohibits employers from discriminating against employees solely on the basis of the employee’s status as a certified user of medical marijuana. Yet, employees who are certified to use medical marijuana are, by definition, already afflicted with illnesses which themselves will likely justify the exercise of rights and protections available under the Americans With Disabilities Act and/or the Family & Medical Leave Act. Once an employee identifies himself or herself as certified to use medical marijuana, employers should exercise particular diligence to assure accommodations are made, short of possession or use of marijuana on the premises, to enable the employee to perform his or her job. However, it bears repeating that even certification for use of medical marijuana will not excuse an employee’s subpar performance or coming to work impaired.
If you have questions about employment law and how it may apply to you or your business call our Yardley, PA office to schedule a consultation. Contact us at (215) 493-8287 or email Scott Fegley at [email protected].