Pennsylvania Medical Marijuana Update
Yesterday, the Pennsylvania Department of Health (“Department of Health”) announced that it has launched its medical marijuana patient and caregiver registry. While this is a significant step toward implementing Pennsylvania’s Medical Marijuana Act (“Act”), employers should be aware that medical marijuana still is not available to certified users in Pennsylvania. The Department of Health expects that certified users will be able to obtain medical marijuana in Pennsylvania beginning May 1, 2018.
When the law is fully implemented, individuals seeking to become a “certified user” under the Act will need to take the following steps:
- Create a profile via the Department of Health’s Patients and Caregivers Registry;
- Obtain a physician’s certification that the individual suffers from one of the 17 serious medical conditions identified in the Act;
- Return to the Patient and Caregivers Registry and pay for a medical marijuana ID card; and
- Obtain medical marijuana from an approved dispensary in Pennsylvania.
Currently, individuals are able to register in the Patients and Caregivers registry (step (1) above). Additionally, Pennsylvania has authorized 100 physicians to certify medical marijuana users, and is expected to authorize 200 additional physicians (paving the way for steps (2) and (3) above). Further, Pennsylvania has approved a grower-processor in Brookville, PA, and is expected to approve additional sites in the near future. However, at this time, there are no authorized medical marijuana dispensaries (individuals cannot complete step (4) at this time).
This means that Pennsylvania employers do not need to change course with respect to their drug and drug testing policies based on the availability of medical marijuana at this time. However, this is the right time to evaluate drug policies and determine whether your company will make any changes in light of the anticipated availability of medical marijuana beginning May 1, 2018.
Pennsylvania employers should be aware of the following provisions of the Act, which apply directly to employers:
- Anti-Discrimination Provision: The Act provides 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, locations or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.” Employers should note that while this provisions clearly prohibits adverse action based solely on an individual’s status as a certified user, it does not explicitly prohibit employers from taking adverse action against an employee based on a positive drug test result.
- The Act provides that employers are not required to:
- Permit employees to work under the influence of medical marijuana when doing so would pose a risk of harm;
- Accommodate the use of medical marijuana on the employer’s premises;
- Withhold discipline when an employee is under the influence of medical marijuana or performs negligently (below the normal standard of care for his/her position) as a result of being under the influence of medical marijuana; and/or
- Take any action that would constitute a violation of federal law.
While the Act is clear in some respects, in other ways it is ambiguous. For example, the Act does not clearly define what it means to be “under the influence” of medical marijuana, though some think it is considered having a “blood content of more than 10 nanograms of active tetrahydrocannabis per millimeter of blood in serum,” which is referenced in the text of the Act (though it is not specifically used as a definition). This means it is possible for courts to interpret provisions of the Act differently, and employers should therefore vigilantly monitor updates in this area.
Given the provisions of the Act, the renewed attention on the issue of employee drug use, and conflicting federal law (regarding the legality of medical marijuana), employers should do the following at this time:
- Review your drug policies, including drug testing policies, for compliance with federal and state laws. If your policy becomes subject to dispute, you want it in tiptop shape so that it holds up under scrutiny. During the month of November, you may purchase a drug policy review from MEA Legal Services for a flat fee of $300, which includes review and revision of your drug use and testing policy and a 15-minute consultation regarding the revisions.
- If you perform drug testing, contact your drug testing vendor and/or Medical Review Officer (“MRO”) to determine how they plan to handle positive marijuana results for Pennsylvania residents who are certified users under the Act. Determine whether this is consistent with your business requirements (for example, a government contractor would maintain its drug-free workplace policy despite legalization of medical marijuana and should instruct its testing vendor and/or MRO accordingly).
- Identify all safety-sensitive positions within your company and maintain an updated list of these positions on file.
- Educate management-level employees about the non-discrimination provisions of the Act.
- Train your management-level employees on their role in the reasonable suspicion drug testing process within your organization. MEA offers reasonable suspicion testing training to managers and employee substance abuse awareness for employees, which can be delivered live in-person or through MEA Live (our online interactive format).
As always, MEA is available to help you accomplish these compliance goals, and you may contact the MEA hotline for additional information or with any questions.
Ciana Williams, Esq., SPHR
MidAtlantic Employers’ Association
*This Alert is provided for general informational purposes only and does not constitute legal advice.