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Green Grass and High Tides: The Pennsylvania Medical Marijuana Act
December 14, 2016
On April 17, 2016, Governor Tom Wolf signed Pennsylvania’s medical marijuana program into law, making it the 24th state with a comprehensive medical marijuana program. The new law — Act 16 or the “MMA” — will protect registered patients and their physicians from civil and criminal penalties and is in the process of creating a regulated system for growing, prescribing and selling medical marijuana. The law was effective in April, but the Department of Health is in the process of issuing regulations to implement the Act. Predictably, Pennsylvania employers now have another issue with which to wrestle in the workplace.

The 35,000 ft. View
The MMA permits individuals diagnosed with a “serious medical condition” and who meet the act’s certifications requirement to use medical marijuana. The statute defines the following as “serious medical conditions:”
  • cancer,
  • positive status for human immunodeficiency virus or acquired immune deficiency syndrome,
  • Amyotrophic lateral sclerosis,
  • Parkinson’s disease,
  • Multiple Sclerosis,
  • damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity,
  • Epilepsy,
  • Inflammatory bowel disease,
  • neuropathies, 
  • Huntington’s disease,
  • Crohn’s disease,
  • post-traumatic stress disorder,
  • intractable seizures,
  • glaucoma,
  • sickle cell anemia,
  • 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, and
  • autism.
However, the MMA adopts a much more restrictive approach than many other state medical marijuana laws. Under the MMA, individuals certified to use medical marijuana are not allowed to smoke it. They can only dose using a pill, oil, topical form, a form suitable for vaporization or nebulization, tincture, or liquid. The MMA does not prohibit individuals from utilizing the oil form as an ingredient in food items. Vaping and baking brownies are okay, but smoking marijuana is not permitted. 

Impact on the Workplace
The MMA prohibits employers from threatening to discharge, discharging, refusing to hire, or otherwise discriminating or retaliating against an employee because the employee is certified to use medical marijuana. But the law does not prohibit employers from disallowing the use of marijuana in the workplace. 
Since medical marijuana use remains illegal under federal law, Pennsylvania employers are not required to provide employees an accommodation (e.g., the ability to use marijuana in the workplace) under the Americans with Disabilities Act (at least not until Congress addresses the issue). Employers with federal government contracts are similarly not required to provide accommodations for employees, contractors and heavily regulated employers in sensitive industries. 

No Case Law Yet
Although there is no case law yet under the MMA, the following are some early observations.
  • The MMA seemingly permits employers to discipline an employee if he or she is under the influence of medical marijuana while working. However, the act uses the term “workplace” which muddies the waters for telecommuting employees, outside sales employees and others who do not physically work at the employer’s worksite.  The MMA seems to indicate that the employer may only discipline those offsite employees who use medical marijuana when their performance falls below the standard of care normally accepted for that position. 
  • Employees under the influence of medical marijuana while working, regardless of whether they are in the workplace, are expressly prohibited from performing particularly sensitive jobs such as “any employment duties at heights or in confined spaces, including, but not limited to, mining” or working with certain chemicals and high-voltage electronics.
  • Employers also have the option to prohibit employees who are under the influence of marijuana while working from: (1) “performing any task which the employer deems life-threatening, to either the employee or any of the employees of the employer”; or (2) “performing any duty which could result in a public health or safety risk.” Employers have this option regardless of whether or not the employee is working outside the workplace. The courts likely will have to determine what kinds of duties would fall under these categories as the list in the statute does not appear to be exhaustive.
  • Employers should consider including provisions in its employee handbook about the use of medical marijuana and develop specific policies regarding safety-based restrictions of particular duties for medical marijuana users. 
  • In administrating such policies, like with other health- and accommodation-related policies, employers should not divulge any personal medical information of the employee to people who do not occupy a “need to know” position. 
Employers who do not tread carefully may find themselves in violation of the Pennsylvania Human Relations Act, as well as the non-retaliation provision of the MMA.

If you have any questions about this issue, please contact us.

Labor & Employment Law Kevin L. Carr