On May 17, 2016, Act 16, Pennsylvania’s Medical Marijuana Act, was made law thereby making Pennsylvania the 25th state to legalize the drug for healthcare purposes.
What Act 16 Does. The law legalizes marijuana use for qualfiying medical conditions for Pennsylvania residents[fn1] and offers non-discrimination employment rights for these qualified patients.[fn2] Patients approved for marijuana use by the DOH will be given a medical cannabis registration card which will be essential to be afforded any protections of law. Access to medical marijuana will be offered only for certain identified illnesses and only through certain forms of THC ingestion. Act 16 also gives doctors and growers a limited, legal means to produce and provide marijuana to qualified patients.
What Act 16 Doesn’t Do. The law does not allow for marijuana to be used for recreational purposes or to be smoked (even for medical purposes).[fn3] The law will not protect impaired employees at work who test positive for marijuana or whose work product falls below acceptable standards. The law does not require health insurers to pay for medical marijuana and it does not require employers to accomodate employees at the workplace with respect to the drug.
Analysis. Boiled down, the new state law should balance individual and employer rights fairly well. The immediate question is whether employers will be obligated to accommodate qualified employees who self-medicate outside of work under the PHRA. Ideally, the regulations will clarify exactly what is expected of employers, but, of course, we will have to wait and see.
[Fn1] Qualifying Medical Conditions. The law approves treatment for Pennsylvania residents with a terminal illness or if he or she suffers from cancer, HIV/AIDS, amyotrophic lateral sclerosis, Parkinson’s disease, multiple sclerosis, epilepsy, inflammatory bowel disease, neuropathies, Huntington’s disease, Crohn’s disease, post-traumatic stress disorder, intractable seizures, glaucoma, autism, sickle cell anemia, damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity, and severe chronic or intractable pain of neuropathic origin, or if conventional therapeutic intervention and opiate therapy is contraindicated or ineffective. Patients registered for medical cannabis in another state are not allowed access to medical cannabis in Pennsylvania.
[Fn2]Legal Protections. A patient must be registered with the DOH in order to be legally protected from marijuana-related arrest, prosecution, or discrimination in child custody. Employers also may not discriminate against patients for their “status” as registered patients. These protections, however, are not absolute:
- Employers are not required to accommodate employees with respect to the property or premises, including for on-site use.
- Employers are not required to violate federal law (e.g. through federal contracting) to assist employees.
- Employers are entitled to maintain a safe workplace:
- Employees with more than 10 nanograms* per milliliter of THC in their blood in serum may not operate or be in physical control of (a) chemicals that require a federal or state permit, (b) a high-voltage electricity, or (c) other public utility.
- Employers may discipline employees 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.”
- Employers may prohibit employees from performing mining or any other “employment duties at heights or in confined spaces” while under the influence of marijuana.
- Employers may prohibit employees from performing any task which the employer deems life-threatening to the employee or other employees while under the influence of marijuana. In addition, “[t]he prohibition shall not be deemed an adverse employment decision even if the prohibition results in financial harm for the patient.”
[Fn3]Method of Ingestion. The only types of medical cannabis allowed initially are pills, oils, gels, creams, ointments, tinctures, liquid, and non-whole plant forms for administration through vaporization: no smoking or edibles are currently permitted. Medical access to marijuana may be limited to a thirty day supply.
Deirdre Kamber Todd, Esq., is a partner with the Kamber Law Group P.C. For more information on employers’ rights, marijuana laws, or other business related matters, please contact The Kamber Law Group, P.C. at 484.224.3059 or firstname.lastname@example.org.