Despite being listed as a Schedule 1 controlled substance under the federal Controlled Substances Act (“CSA”), marijuana has been legalized or de-criminalized in twenty-five states and the District of Columbia. In five states, such as Colorado, marijuana is legal for recreational purposes – adults are permitted to possess marijuana for essentially any and all personal purposes. In other states, marijuana use is limited to medical purposes – children and adults may ingest some forms of marijuana for enumerated medical purposes so long as they maintain valid prescriptions. The conflict between federal law and state law has created a tricky landscape for employers to navigate.

Pennsylvania recently joined the group of states in direct conflict with federal law. In April 2016, Governor Wolf signed the Medical Marijuana Act (“MMA”), legalizing the use of marijuana strictly for medical purposes effective on May 17, 2016. The MMA prohibits patients from smoking marijuana, but they may ingest chemicals (tetrahydrocannabis) extracted from marijuana to alleviate their symptoms through oils, creams, or pills. Marijuana – medically or otherwise – remains illegal under federal law.

Notwithstanding marijuana’s illegal status under federal law, Pennsylvania employers now may not discharge, refuse to hire, or otherwise discriminate against an employee solely on the basis of an employee’s certification to use medical marijuana. 35 P.S. § 10231.2103. But, employers are not required to permit such certified employees to (1) use medical marijuana on company property or any place of employment, (2) be under the influence on company property, or (3) accommodate an employee whose “conduct falls below the standard of care normally accepted for that position.” Id. Additionally, Pennsylvania employers are not required “to commit any act that would put the employer or any person acting on its behalf in violation of Federal law,” such as federal contractors. Id.

The MMA provides further restrictions focused on patients’ conduct. A patient may not handle certain chemicals requiring a permit under federal or state law, work with high-voltage electricity or other public utility, work at heights or in confined spaces, including mines, or work in any setting which an employer deems to be life-threatening while “under the influence” of marijuana. 35 P.S. § 10231.510.

“Under the influence” is defined as having “a blood content of more than 10 nanograms of active tetrahydrocannabis per milliliter of blood in serum.” Id. This metric presents a grey area as employers may find obstacles in timely testing an employee’s blood. However, an employee’s conduct may fall below the standard of care normally accepted, indicating that he/she may be under the influence. While most of the areas of concern regarding the MMA were not expected to arise until early 2018, employers should be prepared to face these issues much sooner.

Pennsylvania’s Department of Health (“Department”) was expected to fully implement the program for patients by early 2018. The program requires the qualification of healthcare providers to prescribe medical marijuana, the establishment of in-state growers (approximately 25), the establishment of in-state dispensaries (approximately 50), and the establishment of in-state research facilities. However, on July 20, 2016, Governor Wolf indicated that he has asked the Department and district attorneys from across the Commonwealth to accelerate the implementation of the program. It is anticipated that the Department is prepared to implement the initial steps of the program in the coming months. The first round of healthcare providers being certified to prescribe medical marijuana will convene in the coming weeks. These healthcare providers already include participants from Allegheny Health Network, Penn State Health, Temple University Health Systems, University of Pittsburgh Medical Center, Pennsylvania Medical Society, and several more.

The Department will also establish regulations governing the program no later than November 2016. Governor Wolf indicated that many of the district attorneys with whom he has spoken have agreed not to prosecute patients in possession during this accelerated implementation period.

Accordingly, employers should be prepared to squarely face MMA-related issues sooner rather than later. First, communication and consistency are key. It is critical that employers disseminate their drug policies to employees and enforce them uniformly among all employees. Monitoring on-site drug use should be uniform and as fair as possible. Drug policies should expressly state that “illegal substances” are defined by federal law, since marijuana remains illegal under the CSA.

Second, an employee with a disability cannot be discharged because of his disability even though an employer uses its zero tolerance drug policy as its nondiscriminatory reason for the discharge. Some nexus between off-site marijuana use and on-site work conduct will need to be established if an adverse employment action is sought.

Third, employees represented by a union will likely enjoy slightly more protection from adverse employment actions. Arbitrators are likely to reverse a termination unless an employer establishes a job-related connection to employee’s off-duty use of marijuana. The labor contract and past practices should guide an employer’s marijuana-related decisions.

Employers would be wise to review their policies regarding drugs, specifically zero tolerance policies, and consider any revisions or additions necessary to ensure they comply with the MMA. Failure to consider these issues now may lead to compounded problems if and when employees begin legally ingesting marijuana off-site under the MMA.

Zachary Bombatch focuses his practice in the areas of labor and employment law and general litigation. In his practice, he counsels clients on compliance with federal and state employment laws and advocates on their behalf in disputes arising under them.
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