On April 17, 2016, Pennsylvania Governor Tom Wolf signed SB 3, the Medical Marijuana Act (the “Act”), into law. The Act will be effective May 17, 2016, and will have implications for employers with employees who become certified medical marijuana patients.
Certified Medical Marijuana Patients
Under the Act, a “patient” is defined as an individual who:
(1) Has a serious medical condition;
(2) Has met the requirements for certification under this Act; and
(3) Is a resident of this Commonwealth.
The Act lists 17 “serious medical conditions” for which an individual who receives a certification from a practitioner and possesses a valid identification card issued by the Pennsylvania Department of Health can purchase and use medical marijuana. Those conditions include cancer, multiple sclerosis, epilepsy, and Crohn’s disease, among others.
Protections for Patients & Exceptions for Employers
The Act prohibits an employer from discharging, threatening, refusing to hire, or otherwise discriminating or retaliating 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.
However, the Act does not require an employer to accommodate the use of medical marijuana on the property or premises of any place of employment. Additionally, an employer may prohibit an employee from performing certain employment duties while under the influence of medical marijuana, such as working at heights or in confined spaces, or performing any task that the employer deems to be life-threatening to the employee or any other employee. Finally, the Act does not 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.” Of course, employers also remain free to discipline employees who test positive for medical marijuana and do not have a valid certification.
Implications for Employers
The Department of Health is required to issue temporary regulations within six (6) months of the Act’s effective date, which will hopefully assist in determining how best to comply with the Act. In the meantime, employers should consider revising their handbooks or policies to reflect the Act’s prohibition on discrimination against an individual certified to use medical marijuana. Employers should also review their drug-testing policies to determine what effect passage of the Act may have on such policies. For example, an employee’s positive medical marijuana test may lead an employer to discover information related to an employee’s disability, which can lead to issues under the Americans with Disabilities Act (“ADA”).
Leech Tishman’s Employment Practice Group will continue to provide updates on the Medical Marijuana Act, including issuance of regulations by the Department of Health. We have extensive experience drafting handbook and other employment-related policies, including drug-testing policies, for use by employers in a variety of industries.
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