[co-author: Francesca Iovino]
The Pittsburgh City Council unanimously passed an ordinance prohibiting discrimination against medical marijuana patients in the workplace and limiting certain types of marijuana drug testing by employers as to these patients. Mayor Ed Gainey is expected to sign the measure and it will take effect immediately after signing.
Pennsylvania state law already protects medical marijuana users from employment discrimination.
The Pittsburgh Ordinance applies to any employer, employment agency, or labor organization that employs at least five employees. Employers excluded from coverage are religious, fraternal, charitable, and sectarian organizations not supported in whole or in part by any governmental appropriations.
The Pittsburgh Ordinance protects individuals who have a “serious medical condition, disability, or handicap such that qualifies them for medical marijuana use,” as well as individuals who are certified under the Pennsylvania State Medical Marijuana Act of 2016 (Act 16) to access marijuana for a certified medical use.
Under the Pittsburgh Ordinance, an employer may not require pre-employment testing for marijuana or testing for marijuana during the course of employment as a condition of continued employment or prospective employment. However, exceptions include:
- Any position which is subject to drug testing due to regulations of the U.S. Department of Transportation or Pennsylvania Department of Transportation;
- Any position requiring the employee to carry a firearm; and
- Any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses pre-employment drug testing.
Like under Act 16, the Pittsburgh Ordinance provides that medical marijuana patients may not operate or be in physical control of certain regulated chemicals, high-voltage electricity, or any other public utilities if they have more than 10 nanograms of active THC in their bloodstream. Medical marijuana patients also may not perform certain tasks or duties while under the influence of marijuana such as ones at heights or in confined spaces (for example, mining), any task deemed to be life-threatening to either the employee or employer, and any duty that could result in a public health or safety risk.
Pittsburgh employers may:
- Conduct marijuana drug testing when there is reasonable cause to suspect an employee is under the influence of a drug while at work or after a workplace accident.
- Take disciplinary action against a medical marijuana patient if the employee’s conduct falls below the standard of care normally accepted for that position while under the influence in the workplace.
Moreover, employers do not have to allow use of medical marijuana on workplace premises or property. They also are permitted to conduct testing for illegal use of controlled substances. Employers located and operating in the Pittsburgh area should reevaluate their hiring policies and drug policies and ensure they are consistent with the Pittsburgh Ordinance, state law, and federal law.
