Withdrawing a Certified Medical Marijuana User’s Job Offer After a Positive Drug Test: A Cautionary Tale for Employers

Jeremy Farrell, Esq., jfarrell@tuckerlaw.com, (412) 594-3938

Though it has been around for nearly a decade, the Pennsylvania Medical Marijuana Act continues to cause considerable confusion for employers. A recent decision (available here) helps to provide some guidance to employers about how the law applies during the onboarding process.

The situation is not an unfamiliar one.[1] An applicant sought a job with a company in the construction industry. The applicant ultimately received the job offer, contingent on the successful completion of a pre-employment drug test.

The applicant suffered from various mental health conditions, for which he was prescribed medical marijuana, Prozac, and Adderall. The applicant disclosed his diagnoses and prescriptions shortly after receiving the conditional job offer.

The role in question was a “project engineer,” which involved mostly office work. The role did not involve working with high-voltage electricity or government-regulated chemicals or engaging in activities that were life-threatening or posed public health and safety risks—all tasks that medical marijuana users may be restricted from performing. (See 35 P.S. § 10231.510(1)-(2) for more detail on these provisions of the Act.)

The applicant took the drug test and tested positive for marijuana, prompting the employer to ask him to provide a certification from his doctor stating:

• The estimated THC level the prescription should result in for the applicant;
• That the prescribed amount would not impair a person’s ability tosafely operate a vehicle; and
• That the prescribed amount would not impair a person’s ability to perform “safety sensitive career tasks in the construction industry, such as climbing ladders, walking on scaffolding, etc.”

The applicant sent an email response indicating that his physician could not provide a detailed description of THC levels given the nature of the prescription and that, after speaking with his doctor, “we have discussed safe and appropriate use, including my understanding of not operating heavy machinery nor driving, climbing ladders, walking on scaffolding, etc., along with my expression of commitment to safe use.” The applicant also offered to sign an agreement that he wouldn’t use medical marijuana during work and refrain from off-hour use that could render him under the influence while at work.

The employer ultimately rescinded the job offer. The applicant argued that was unlawful under the Medical Marijuana Act, which prohibits employers from discriminating against applicants and employees because of their status as a certified medical marijuana cardholder. The Court concluded that the applicant may be correct and rejected the employer’s attempt to dismiss the case.

The employer made various arguments in support of its request to dismiss the case. For example, it asserted that the positive drug test was a legitimate business reason to withdraw the job offer. The Court disagreed, reasoning that the Act protects not just an individual’s status as a medical marijuana cardholder, but also his or her attendant, lawful use of medical marijuana. As the Court stated:

As a practical matter, it seems to this Court that the Medical Marijuana Act would be quite toothless if it only protected an employee’s ability to possess a medical marijuana card, rather than the employee’s ability to take the prescription medication that the card authorizes the individual to use … In this Court’s estimation, if the applicant’s legal use of marijuana to treat his disabilities constitutes the basis for an adverse employment decision, the only logical conclusion that follows is that he has been subjected to an adverse employment action based upon his status as a Pennsylvania medical marijuana cardholder.

(Cleaned up.)

The employer also argued that the applicant’s failure to provide the requested medical certifications about his ability to drive and perform certain safety sensitive duties common to the construction industry warranted the withdrawal of his offer, which the Court rejected on the grounds that it was not established his job–which was primarily an in-office job–would involve the performance of those duties.

In all, the Court found that the applicant stated a plausible claim that it was his medical marijuana cardholder status that caused the employer to withdraw his offer in violation of the Medical Marijuana Act.

This case highlights several key things for employers to bear in mind:

• The Medical Marijuana Act applies to applicants as well as employees.
• An applicant’s or employee’s status as a medical marijuana cardholder should be treated similarly to other legally protected characteristics, like race, gender, or religion.
• With some potential exceptions (that should be discussed with legal counsel), employees cannot be denied a job simply because they have a valid medical marijuana card and consume medical marijuana in accordance with that prescription.
• Follow-up inquiries for the applicant’s doctor may be appropriate, but they should be limited to the actual requirements of the job in question.
• Although not an issue in this part of the Court’s decision, those who have been certified to use medical marijuana likely also have disabilities under federal and state law, which may, depending on the circumstances, require their own reasonable accommodations.

As noted at the beginning of this article, the Medical Marijuana Act remains a murky subject. Employers should contact their attorneys before taking adverse employment actions (terminations, withdrawals of job offers, etc.) against applicants or employees who have a valid medical marijuana card.

If you have questions about how Pennsylvania’s Medical Marijuana Act applies in your situation, Jeremy Farrell can be reached at jfarrell@tuckerlaw.com or 412-594-3938.

[1]                  These facts are taken from the applicant’s complaint that was filed in Court, which, as required by the applicable procedural rules, were assumed to be true for the purposes of resolving the employer’s motion to dismiss. The employer may dispute these facts as the case progresses.