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Medical Marijuana and Pennsylvania Employers

by David B. Schaumann, Esquire

With great fanfare, Governor Wolf signed the Pennsylvania Medical Marijuana Act. This law had been advocated by groups of parents with sick children who, the parents believe, could benefit through the use of medical marijuana. It was hotly debated in the legislature and subject to dispute within the medical community.

The Medical Marijuana Act does not permit medical marijuana in plant form or allow marijuana to be smoked or ingested.  Any possession of those forms of marijuana is still illegal under Pennsylvania and Federal Law. Possession is considered a criminal act.  The law has several key provisions affecting employers as follows:

  • An employer cannot discharge or otherwise discriminate or retaliate against an employee solely on the basis of an employee’s status as a certified medical marijuana user.
  • Medical marijuana cards are only issued to patients with medical conditions as specifically listed in the Act or terminally ill.
  • An employer does not have to accommodate the use of medical marijuana on the premises of the employer.  The employer can also discipline employees for being under the influence of medical marijuana in the workplace.
  • If an employee has a blood content of more than 10 nanograms of active THC per milliliter of blood, an employer may prohibit an employee from performing certain tasks that are deemed life threatening to the employee.

Because the employee has a serious enumerated condition, the employee most likely would be covered under the Americans with Disabilities Act, and employers may be required to accommodate them.  The requirement to accommodate seems to be at odds with the statutory provisions that the employer does not have to allow use on its premises. This will set up court cases as to the ADA issue.

I estimate that it will take approximately 2 years for licensing and regulations to be completed.  During that time, we may have an opportunity to see how the courts in other jurisdictions are handling similarly worded statutes.