Since Pennsylvania’s Medical Marijuana Act (“Act”), came into effect on May 17, 2016, many employers have questioned whether they can continue to maintain a drug free environment in the workplace as it relates to medical marijuana use and fear that their employees will become Jeff Spicoli overnight. However, employers are often surprised to learn that the Act contains certain safeguards that are relatively employer friendly.

Under the Act, a Pennsylvania resident must have a serious medical condition to qualify for medical marijuana use. A serious medical condition under the act includes conditions such as cancer, epilepsy, glaucoma, HIV/AIDS, Parkinson’s disease, and sickle cell anemia. Unlike Jeff Spicoli, medical marijuana users in Pennsylvania are not allowed to smoke it and may take a dose only by pill, oil, topical forms, tincture, liquid and a form that is medically appropriate for administration by vaporization or nebulization, excluding dry leaf and plant form. Accordingly, an employer’s fear that their employees will be surrounded in a cloud of marijuana smoke at the workplace is unfounded.

While the Act broadly prohibits employers from threatening, discharging, refusing to hire, or otherwise discriminate and retaliate against an employee because of an employee’s certified use of medical marijuana, the Act expressly states that there is no requirement that an employer accommodate the use of medical marijuana at the work place. Further, the Act expressly provides that it does not limit an employer’s ability to discipline an employee for (1) being under the influence of medical marijuana at the work place or (2) working while under the influence of medical marijuana when the employee’s conduct falls below the accepted standard of care for his or her position.

In addition, there are certain employment related duties that a medical marijuana user is not allowed to perform under the Act while under the influence of medical marijuana, such tasks that involve heights or confined spaces. An employer may also prohibit the employee from performing any tasks the employer believes to be life-threatening to the employee or other employees or would result in a public health or safety risk.

It’s also worthy to note that medical marijuana use is still illegal under federal law and, accordingly, does not require reasonable accommodation by the Americans with Disabilities Act.

In light of the more employer friendly provisions of the Act, an employee should not expect to be stoned at work and an employer does not need to fear that their employees will be engulfed in marijuana smoke throughout the workplace. Employers should caution against any conduct that is considered discriminatory and retaliatory against employees who legally use medical marijuana and should consider developing a provision in their handbook which addresses how employee medical marijuana use will be handled at the workplace.

Alfred C. Maiello
Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.