Legal Developments: Expanding Protection for Marijuana Users?

W. Isaac Zimmerman, Esq., izimmerman@tuckerlaw.com, (717) 221-7971

Pennsylvania enacted the Medical Marijuana Act (“ACT”) in April of 2016, and over the past nearly 10 years, the ACT has been analyzed alongside several political agendas, such as federal limited reclassification of state-licensed marijuana under the Controlled Substances Act. Recently, municipalities are enacting their own local medical marijuana policies, creating a further layer of interplay between the ACT, employer policies, and local political agendas, as Attorney Ashley Puchalski Thomas explains in an article she authored here.

Under the ACT, employers cannot take an adverse employment decision solely on the basis of an employee’s status as being certified to use medical marijuana. 35 P.S. 10231.2103(b)(1). Functionally, this puts those lawfully certified to use medical marijuana in their own legally protected class. Employers, however, may be permitted to take an adverse employment action against an employee if they are “under the influence” of medical marijuana at work or their medical marijuana use causes their job performance to drop below the accepted standards for that job role ACT Chapter 2101 § 2102(b)(2).

As the impact of the ACT and subsequent local policies continue to develop, employers should also be wary of a potential expansion of legal protections for responsible adult users of recreational marijuana. Some states and municipalities, such as New York City , have already provided employment protections for such recreational marijuana use, and Pennsylvania’s legislature is at least considering a move in that direction.

The Cannabis Health and Safety Act (HB 1200) was passed by the House of Representatives last May and is currently pending in Senate sub-committee. If enacted, it would, in certain circumstances prohibit employers from taking adverse action against an employe for cannabis use outside of the workplace, including where an employee tests positive for cannabis metabolites on an employment drug test. HB 1200, pursuant to section 202.1,(a)(1) states “(1) An individual may not be subject to penalty in any manner, or be denied any right or privilege, including, but not limited to, disciplinary action by an occupational or professional licensing board or bureau solely for conduct allowed under this chapter when conducted outside of the workplace and work hours.” Further, Section 202.1(a)(2) continues “It is unlawful for an employer to discriminate against an individual in hiring, terminating or any term or condition of employment, or otherwise penalizing an individual, if the discrimination is based upon any of the following: (i) The individual’s use of cannabis flower or cannabis products outside of the workplace and work hours. (ii) An employer-required drug screening test that has found the person to have cannabis metabolites in their hair, blood, urine or other bodily fluids.” However, the HB 1200 under Section 202.1 (a)(4)(b)(ii) does not “limit or prevent an employer from disciplining an employee or terminating employment of an employee for violating an employer’s employment policies or workplace drug policy if the policies were disclosed to the employee.” Which shows the proposal does provide some ability for employers to maintain a reasonable drug free workplace, as long as the policies are applied in a nondiscriminatory manner and are disclosed to the employees.

For more information regarding your rights as employers, contact Tucker’s labor & employment practice group..