Pennsylvania became the latest state to legalize medical marijuana when Governor Tom Wolf signed the Pennsylvania Medical Marijuana Act into law last week. The statute, which had bipartisan support, establishes a medical marijuana program for Pennsylvania residents with "serious medical conditions," defined in an enumerated list that includes cancer, HIV, ALS, Parkinson's disease, multiple sclerosis, epilepsy, neuropathies, Crohn's disease, PTSD, sickle cell anemia, autism, and severe chronic or intractable pain of neuropathic origin. The Act takes effect on Tuesday, May 17, 2016.
There are several key provisions of the Act that are relevant for Pennsylvania employers. One such provision is the Act's requirement 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."
Notwithstanding the non-discrimination and non-retaliation mandate, the Act provides employers the ability to place certain limitations on employees' use of medical marijuana in work-related settings. For example, the Act does not require an employer to make any accommodation of the use of medical marijuana on the property or premises of any place of employment. Nor does the Act place limitations on an employer's ability to discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee's conduct falls below the standard of care normally accepted for that position.
The Act further specifies that it does not require an employer or any person acting on its behalf to commit any act in violation of federal law. In addition, medical marijuana users are barred from performing employment duties at heights or in confined spaces while under the influence, and may be prohibited by an employer from performing any tasks the employer deems life-threatening to the user or other employees or which could result in a public health or safety risk. Further, a medical marijuana user is not permitted to undertake any task under the influence when doing so would constitute negligence.
The Act does not require insurers or health plans to provide coverage for medical marijuana. Employers with self-funded health plans are protected by ERISA, the federal employee benefits law, from state-mandated benefit laws that could otherwise require health plans to cover certain health services or products. Employers that maintain insured health plans, on the other hand, are subject to the requirements of individual state-mandated benefit laws. To date, no state has required insurers or insured health plans to cover medical marijuana treatment.
Despite these employment-specific provisions, the Act leaves unanswered several questions for Pennsylvania employers. For example, is an employer required to accommodate an employee's medical marijuana use off-premises? May an employer refuse to hire an applicant who tests positive for marijuana or terminate an employee for a positive test, if he or she is a licensed user? How is an employer to determine whether an employee is "under the influence of medical marijuana in the workplace" or "working while under the influence of medical marijuana" when positive drug screens offer no means to distinguish between on- and off-duty use? The Department of Health of the Commonwealth, which is responsible for promulgating all regulations necessary to carry out the provisions of the Act, is required to begin publishing temporary regulations within six months, which may offer insights on these issues.
