by Renee Mielnicki, Esq.
On April 17, 2016, Governor Wolf signed the Medical Marijuana Act, or SB3, legalizing medical marijuana in the state of Pennsylvania. The law goes into effect on May 17, 2016. Pennsylvania is now the 24th state to decriminalize marijuana for medical purposes. The Pennsylvania Department of Health will be responsible for implementing and regulating the program, including issues like applications, licenses and ID cards. The Department has six (6) months to issue temporary regulations on the matter.
For any of our PA employers that may be stressing out over this news, thinking it’s going to wreak havoc on your drug free workplace program, don’t stress out. The legislators were kind enough to remember you when drafting the law in that it allows you to discipline employees for being under the influence of medical marijuana while at work. The law also does not require you to commit any act that would put you in violation of federal law. Since the federal government still outlaws marijuana, there is a conflict between state and federal law on the subject. In addition, the government recognizes, that like any other drug, being under the influence of medical marijuana at work could affect the employee’s ability to do the job or may pose a safety risk. Therefore, employers remain free to regulate and prohibit the use of medical marijuana while at work.
If you are an employer in a state where marijuana has been legalized, whether medically or recreationally, you should be updating your drug testing policy accordingly. In particular, your policy should make it clear that you prohibit drugs that are illegal under state or federal law. Prohibiting a drug still illegal under federal law takes away the argument that the employee has a prescription or that it’s legal when used off duty. In addition, employers should also make it clear that “under the influence” is not the standard for a policy violation. Rather, any positive test should be the grounds for a policy violation. This will take away the argument that the employee may not have been under the influence at the time since marijuana can take weeks to dissipate from the body. We always recommend that employers use independent certified laboratories to conduct drug tests. A simple certification of a positive marijuana test from the lab would then result in a drug policy violation. An ‘under the influence’ analysis makes it too easy for those using marijuana off duty to challenge a positive finding by arguing that use may have been weeks ago and therefore should not be cause for a policy violation. You can easily cut that argument off in your policy by changing your violation standard.
Lastly, to my knowledge, neither PA nor any other state has included in their legalization law a requirement that an employer has to provide a reasonable accommodation under the American’s with Disabilities Act for those who have a prescription for medical marijuana and therefore make an exception to its drug policy. Good news and another win there for employers on this issue.
For more information about drug testing, see my previous blog, Drug Testing in the Workplace: Some Basic Issues.
If you have questions about drug testing or drug and alcohol policies, send us an email at firstname.lastname@example.org.
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