Medical Marijuana became legal in Pennsylvania in 2016 through the Medical Marijuana Act. As a result of the legalization of marijuana for medical purposes on a state level, employers will be faced with situations where they will need to decide how to handle employees and prospective employees who are authorized by state law to utilize marijuana for medical purposes. This is especially important since marijuana is still considered illegal pursuant to federal law. While it will take time before Pennsylvania courts provide concrete guidance to employers on how to deal with specific situations, a recent decision from Connecticut provides some potential insight.
The United States District Court for the District of Connecticut granted summary judgment on an employment discrimination claim under the Connecticut Palliative Use of Marijuana Act (PUMA) in Noffsinger v. SSC Niantic Operating Co., LLC, 3:16-CV-01938 (JAM), 2018 WL 4224075 (D. Conn. Sept. 5, 2018). There, the plaintiff accepted a job offer from the defendant, a health and rehabilitation center. However, the offer was contingent upon successfully passing a drug test. Before taking the drug test, the plaintiff disclosed to the defendant that she qualified under PUMA to use marijuana for medical purposes to treat her post-traumatic stress disorder (PTSD). After her drug test came back positive for Tetrahydrocannabinol (THC), the chemical responsible for most of marijuana's psychological effects, the defendant rescinded its job offer. The plaintiff then filed a lawsuit against defendant. The parties both moved for summary judgment. The Court held that the plaintiff was entitled to judgment as a matter of law on her claim for employment discrimination under PUMA.
PUMA provides that “[n]o employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person's or employee's status as a qualifying patient or primary caregiver under sections 21a-408 to 21a-408n, inclusive. Nothing in this subdivision shall restrict an employer's ability to prohibit the use of intoxicating substances during work hours or restrict an employer's ability to discipline an employee for being under the influence of intoxicating substances during work hours.” Conn. Gen. Stat. § 21a-408p(b)(3).
In reviewing the record, the Court held that the facts were undisputed that plaintiff’s job offer was rescinded because of her positive drug test result and that the result of that test stemmed from plaintiff’s use of medical marijuana pursuant to her qualifying status under PUMA. Among other things, the defendant argued that it was exempt from PUMA because the statute allows for an exception if discrimination is required by federal law or required to obtain federal funding. Defendant argued that the Drug Free Workplace Act (DFWA) barred it from hiring plaintiff. The Court disagreed and determined that the DFWA does not require drug testing, nor does it prohibit federal contractors from employing someone who uses illegal drugs outside the workplace. The defendant chose to utilize a zero tolerance policy to maintain a drug free work environment, but that did not mean that the policy was required by federal law to obtain federal funding, nor did it mean that such the Defendant was exempt from PUMA when hiring. Thus, the Court did not agree with the defendant that it would violate the DFWA by employing someone in plaintiff’s position, who uses medical marijuana during off-hours.
Similar to the Connecticut statute, the Pennsylvania Medical Marijuana Act (MMA) provides certain protections for patients and caregivers. In an employment context, “[n]o employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee's compensation, terms, conditions, location or privileges solely on the basis of such employee's status as an individual who is certified to use medical marijuana.” 35 P.S. § 10231.2103(b)(1). However, nothing in the MMA requires an employer to accommodate the use of medical marijuana on the property or premises of employment. The MMA also does not limit an employer’s ability to discipline an employee for being under the influence of medical marijuana in the workplace, especially when the employee’s conduct falls below the normally accepted standard of care for the employee’s position.
Given the outcome in Noffsinger and the text of Pennsylvania’s MMA, Pennsylvania employers may be wondering how to deal with employees and prospective employees who legally use medical marijuana under Pennsylvania law. While we don’t yet have Pennsylvania case law providing clear guidance, it’s important for employers to proceed with caution when dealing with such situations. Employers can certainly continue to administer drug tests both before and during employment. However, employers must remember that they cannot make employment decisions solely based on an individual’s status as a medical marijuana user. Employers certainly are not required to permit or accommodate intoxication in the workplace. However, employers may need to consider the implications of the Americans with Disabilities Act when confronted with an individual who uses medical marijuana pursuant to the MMA. The key takeaway from the Noffsinger case is that employers should consider, before rescinding a job offer or otherwise disciplining or terminating an employee, whether there are any other legitimate job-related reasons for doing so, besides a positive drug test for THC, when it is know that the individual is using medical marijuana pursuant to the MMA.
It is important to note that guidelines and rulings are still taking shape in Pennsylvania. Please contact us if you would like to be kept apprised of the guidelines and applicable regulations as Pennsylvania Courts assesses the implications of the MMA in the workplace. As always, we are also available to review job descriptions and policies to help you with continuing compliance with state and federal law.