Pennsylvania’s Medical Marijuana Act (“Act”), 35 P.S. § 10231.101, et seq., which makes the use, possession, and distribution of medical marijuana lawful in the Commonwealth, went into effect on May 17, 2016.  On its face, the Act is legally and practically complicated for employers, because – among other things – it:

  • Fails to define what it means to be “under the influence”;
  • Calls into question whether urine testing is a proper means of testing for marijuana in the workplace; and
  • Allows employers to assign safety-sensitive work and issue discipline based on the effects of medical marijuana, while at the same time prohibiting discrimination based on medical marijuana use.

There are multiple provisions of the Act that expressly protect employers.  Specifically, employers are not required to: (1) permit employees to work under the influence when to do so would pose a risk of harm; (2) accommodate use of medical marijuana on the premises; (3) withhold discipline where an employee is under the influence in the workplace or performs negligently as a result of being under the influence; or (4) take any act that would constitute a violation of federal law.

The Act comes on the heels of new guidance from the Equal Employment Opportunity Commission regarding leave as a reasonable accommodation under the Americans with Disabilities Act, and at a time when using marijuana continues to be an offense under federal law (see, for example, a 2013 Memorandum from the Deputy Attorney General of the United States Department of Justice regarding marijuana enforcement under the federal Controlled Substances Act.

The Pennsylvania Department of Health recently issued temporary regulations for dispensaries under the Act, which should be soon followed by temporary regulations for growers and processors.

In the midst of tension between the Act, federal law, and current generally-accepted employer policies, PBI has developed a session on the Pennsylvania Medical Marijuana Act to be held at the 2016 Employment Law Institute West. For practical solutions to this and many other problems in employment law, be sure to attend the 2016 Employment Law Institute West in Pittsburgh on Thursday and Friday, November 17-18. Now in its 20th year, the Institute offers over 35 great sessions, a superb faculty and tremendous resource materials. Register today!

Tiffany Jenca

Buchanan Ingersoll Rooney PC