Pennsylvania's New Medical Marijuana Act Implicates Employer Drug Policies
Pennsylvania’s Medical Marijuana Act (Act), effective May 17, 2016, makes the use, possession and distribution of marijuana lawful in the Commonwealth of Pennsylvania, provided the individual using, possessing and/or distributing the marijuana is authorized by the Act to do so and acts in compliance with the Act. The Act is summarized below, and the bill can be viewed here.
Implementation
The Pennsylvania Department of Health is responsible for implementing the Act and the medical marijuana program, which will provide access to medical marijuana to patients who are under a physician’s care for the treatment of a serious medical condition (described below). Patients with one of the designated serious medical conditions will be able to access medical marijuana with a physician’s certification at designated state dispensaries.
Qualifying Patients/Serious Medical Conditions
The Act limits the use of medical marijuana to qualifying patients. To qualify, the patient must reside in Pennsylvania and be under the continuing care of an approved practitioner for the treatment of cancer, HIV/AIDS, amyotrophic lateral sclerosis, Parkinson’s disease, multiple sclerosis, epilepsy, inflammatory bowel disease, neuropathies, Huntington’s disease, Crohn’s disease, post-traumatic stress disorder, intractable seizures, glaucoma, sickle cell anemia, damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity, or severe chronic or intractable pain of neuropathic origin or severe chronic or intractable pain in which conventional therapeutic intervention and opiate therapy is contraindicated or ineffective. To be under the "continuing care" of a practitioner means that, in the course of treating the patient, the practitioner "has completed a full assessment of the patient’s medical history and current medical condition, including an in-person consultation with the patient."
Allowable Forms/Limitations
The Act restricts the forms in which medical marijuana may be dispensed to pills, oils, topical forms (including gel, creams or ointments), tincture, liquid and non-leaf, non-plant forms medically appropriate for administration by vaporization or nebulization. The Act provides that an advisory board will make recommendations regarding patient access to dry-leaf or plant cannabis two years after the Act becomes effective.
General Anti-Discrimination/Retaliation Rule for Employers
The Act provides that "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."
Employer Protections
There are multiple provisions of the Act that expressly protect employers. In sum, employers are not required to:
- Permit employees to work under the influence when to do so would pose a risk of harm;
- Accommodate the use of medical marijuana on the premises;
- Withhold discipline where an employee is under the influence in the workplace or performs negligently as a result of being under the influence; or
- Takes any act that would constitute a violation of federal law.
While the Act does not specifically define "under the influence," it states: "[a] patient may not operate or be in physical control of [certain chemicals or high-voltage electricity] while under the influence with a blood content of more than 10 nanograms of active tetrahydrocannabis per milliliter of blood in serum." Note that urine tests do not detect the psychoactive component in marijuana, THC (delta-9-tetrahydrocannabinol) and, therefore, do not measure impairment; rather, they detect the non-psychoactive marijuana metabolite THC-COOH, which can linger in the body for days and weeks with no impairing effects. Blood tests are believed to be a better detector of recent use, since they measure the active presence of THC in the system.
As a result of this new law, Pennsylvania employers should review their policies regarding off-duty conduct and drug use, possession and distribution. Employers are encouraged to consult with an attorney before issuing discipline based on actual or suspected marijuana use and to understand how the Act may impact their particular business or facility.