Pennsylvania’s Medical Marijuana Act (MMA or the Act), 35 Pa. C.S.A §10231.101, et seq., became effective May 17, 2016. The MMA introduces a new industry to Pennsylvania and establishes rules and procedures for how that industry is intended to operate, from growers to patients.
For starters, federal law impacts how employers will comply with the MMA. For example, federal contractors and transportation companies must still abide by federal drug testing laws; the Pennsylvania statute does not override those pieces of federal legislation. Second, however, Pennsylvania employers also have to be careful about how the ADA will interact with the MMA. The MMA defines a serious health condition, which if an employee presents with that type of condition, he or she may find protection under the ADA (and/or the PHRA), regardless of MMA protections.
For employers who employ individuals who are approved medical marijuana users, the MMA frames some workplace guidelines but does not provide complete clarity. The MMA forbids employees from being under the influence of medical marijuana while working. The Act also carves out certain prohibitions for specific work environments, for example, preventing medical marijuana users from working confined spaces and working from heights. However, the MMA expressly states that “[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.” This provision makes it critical for employers to link adverse employment decisions to facts and conditions that are not based solely on the employee’s user status. As a result, employers should be flexible, avoid blanket policies, and make decisions supported by a connection between marijuana use and on-site work conduct that is below the “normal performance standards for the position.”
- Review your policies and workplace practices with legal counsel, including drug testing, substance abuse, and disciplinary policies to ensure compliance with the MMA and federal law
- Provide training to managers and supervisors for potential changes in current policies and procedures
- Discuss insurance policies and contracts with your broker to become aware of how these will cover the new risks that medical marijuana introduces to the workplace
If you have further questions about how these changes may impact your insurance program, contact one of our Experts today.
Please note that the information contained in this posting is designed to provide authoritative and accurate information, in regard to the subject matter covered. However, it is not provided as legal or tax advice and no representation is made as to the sufficiency for your specific company’s needs. This post should be reviewed by your legal counsel or tax consultant before use.