Medical marijuana became legalized in Pennsylvania in 2016 and in February of 2018 medical marijuana became available to patients at dispensaries across the commonwealth. Getting medical marijuana through Pennsylvania’s medical marijuana program requires a few basic steps. First, an individual must register for the program through the Medical Marijuana Registry. Next, a physician must certify that the individual suffers from one of the medical conditions that qualify for medical marijuana. The qualifying medical conditions include: Amyotrophic lateral sclerosis, Anxiety disorders, Autism, Cancer, including remission therapy, Crohn’s disease, Damage to the nervous tissue of the central nervous system (brain-spinal cord) with objective neurological indication of intractable spasticity, and other associated neuropathies, Dyskinetic and spastic movement disorders, Epilepsy, Glaucoma, HIV / AIDS, Huntington’s disease, Inflammatory bowel disease, Intractable seizures, Multiple sclerosis, Neurodegenerative diseases, Neuropathies, Opioid use disorder for which conventional therapeutic interventions are contraindicated or ineffective, or for which adjunctive therapy is indicated in combination with primary therapeutic interventions, Parkinson’s disease, Post-traumatic stress disorder, Sickle cell anemia, Terminal illness, and Tourette syndrome. Section 103(16) of the MMA also contains a “catch-all” condition for pain under its definition of a “serious medical condition” where a patient may also qualify for a prescription if the person presents with “severe chronic or intractable pain of neuropathic origin or severe chronic or intractable pain in which conventional therapeutic intervention and opiate therapy is contraindicated or ineffective.” After receiving a physician’s certification, the individual must then pay for a medical marijuana ID card. The cost of a medical marijuana ID card is $50, but patients who participate in assistance programs may be eligible for fee reductions. After following these steps, the individual may then legally obtain medical marijuana from an approved dispensary in Pennsylvania.
Per the Pennsylvania Medical Marijuana Act (MMA), 35 Pa. C.S.A. §10231.101, et seq., an employer may not discriminate against patients for their status as registered medical marijuana patients. It is important to note, however, that Marijuana use, whether medicinal or recreational, remains illegal as a Schedule I controlled substance. 21 U.S.C. § 802(16). Federal law, in this situation, preempts the MMA. Section 2103(b)(3) which specifically reads: “[n]othing in this act shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of Federal law.” As a result, employers subject to federally mandated, drug-free workplace programs, including CDL drivers and federal contractors, must abide by the federal rules, such as reporting all drug tests positive for marijuana and prohibiting and not accommodating for marijuana use. All other Pennsylvania employers must follow the MMA. However, employers do not have to make any accommodation of the use of medical marijuana on the property or premises of any place of employment. Further, 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. With that being said, Section 510 of the MMA prohibits patients from the following employment duties while under the influence of medical marijuana: (1) working with chemicals that require a federal or state permit or (2) working with high-voltage electricity or other public utility (3) working at heights or in confined spaces, (4) performing any task which the employer deems life-threatening to the employee or other employees while under the influence of marijuana, and (5) performing any duty which could result in a public health or safety risk. Such prohibitions shall not be deemed an adverse employment decision even if the prohibition results in financial harm for the patient.
It is important for employees and employers to familiarize themselves with the MMA while also being cognizant of other laws which may be indirectly implicated such as the Americans with Disabilities Act (ADA) and the Pennsylvania Human Relations Act (PHRA). See related articles for more information on the ADA and PHRA.
If you believe you have been wrongfully terminated or if you are an employer needing guidance on the MMA, contact an RMN attorney today at lawyer@RMN-law.com or 412-626-5626.