Articles, Newsletters and Advisories
The Legal Intelligencer
Act 16 of 2016, the Medical Marijuana Act (MMA), 35 Pa.C.S.A. §10231.101, et seq., effective May 17, 2016, puts Pennsylvania among the growing number of states permitting the use of marijuana for prescribed medicinal purposes. The MMA, like all state laws purporting to “legalize” marijuana use, squarely conflicts with federal law, which still considers marijuana to be a Schedule 1 substance under the Controlled Substances Act with no legitimate medical uses, see 21 U.S.C. Sections 812(b)(1)(A)-(C); 844(a). The MMA acknowledges: “Nothing 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.” The MMA creates uncertainty with respect to the application and enforceability of employer “zero tolerance” and similar policies against the use of illegal drugs, injects new risks into the workplace and adds still more potential claims to the ever-growing list of employment-related causes of action.
The MMA permits appropriately credentialed physicians to prescribe and certify marijuana treatment in various forms—but not in dry leaf or plant for—to patients for any one of 17 chronic “serious medical conditions,” most being debilitating. MMA also establishes the licensing criteria for becoming a certified grower/processor and dispenser of medical marijuana; criminal and civil penalties for diversion of medical marijuana by a grower, dispensary, patient or care giver; and an advisory board to oversee operation of the act. The Pennsylvania Department of Health has issued interim regulations to implement some of the provisions of the MMA and is in the process of drafting more permanent rules.
Employment Provisions of the MMA
Although many of the conditions for which marijuana may be prescribed are disabling, the act addresses the rights and obligations of employees who may be able to work while certified to receive medicinal marijuana. These provisions are often ambiguous, creating uncertainty where clarity is required.
• Employment restrictions in the MMA.
Section 510 of the MMA prohibits medical marijuana patients from performing certain dangerous jobs and permits employers to restrict such users from performing other jobs. In Section 510(1) employees are prohibited from: working with chemicals requiring a state or federal permit; and working with high voltage electricity or any other public utility while “under the influence with a blood content of more than 10 nanograms of active [THC] per milliliter of blood,” 35 Pa.C.S.A. Section 10231.510(1)(i)&(ii). Sections 510(2)(3)&(4) also make it unlawful “while under the influence of medical marijuana,” for an employee to work at heights or in a confined space; permit employers to restrict a marijuana patient “from performing any task which the employer deems life-threatening,” to either the employee or other employees; and allow the employer to prohibit an employee from performing any job “which could result in a public health or safety risk.”
The precision with which the phrase is defined in Section 510(1)—by reference to an objective concentration of THC in the employee’s blood—is not useful, because the MMA does not explicitly provide any method for the employer to determine whether his employee is “under the influence” as defined. Nor does it mandate that employees disclose their THC levels to their employers. How is the employee or the employer to know whether work is prohibited? It is apparently incumbent on employers to require drug testing of employees who work in the regulated occupations in order to comply with the act.
Note also that “under the influence” is defined only in subsection 510(1) and not in Section 103, the general definitional section of the MMA. Whether the definition in Section 510(1) was intended to apply to the six other instances where the term is used throughout the MMA is not clear, and the failure of the legislature to make it clear creates an unnecessary ambiguity.
The absence of a definition applicable to the entire statute suggests that the precise definition in Section 510(1) is not applicable to the other sections where the term is used, see 1 Pa.C.S.A. Section 1933 (“Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both”). It is arguable and justifiable, although not free from doubt, that the legislature’s use of the term “under the influence” means different things in different sections of the MMA. As discussed below, a relaxed definition saves the MMA from conflict with federal law and many existing employer policies, and comports with the act’s stated intent of excusing employers from conduct violative of federal law and accommodation of the use of medical marijuana “on the property or premises of any place of employment.”
• Employee and employer protections
In Section 2103(b), 35 Pa.C.S.A. Section 10231.2103(b), the legislature has enacted provisions intended to prevent employment discrimination against certified medical marijuana users, while at the same time insulating employers from the obvious consequences of permitted use. This effort to satisfy all constituents has resulted in ambiguous statutory language leaving the rights and obligations of the parties uncertain. However, close analysis of the statutory language suggests that the MMA does not invalidate employer policies prohibiting the use of marijuana.
Section 2103(b) provides:
• No 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.
• Nothing in this act shall require an employer to make any accommodation of the use of medical marijuana on the property or premises of any place of employment. This act shall in no way limit 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.
• Nothing 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.”
Although subparagraph (b)(1) protects employees from employment actions based “solely” on their “status as an individual who is certified to use medical marijuana,” it says nothing about employment actions based on actual use pursuant to such certification. It would have been a simple matter for the legislature to have protected use pursuant to certification: “No employer may discharge, etc., an employee solely on the basis of such employee’s use of medical marijuana in accordance with a valid certification,” but it did not do so. The failure to provide protection for actual use of prescribed marijuana suggests that no such protection was intended by the legislature, but that is not the only possible reading of the act.
Employer rights have been similarly obfuscated by the MMA. Many employers have implemented “zero tolerance” or “no use” policies to address the use of drugs by their employees. For example, some federal contractors and all federal grantees are required by the Drug Free Workplace Act to establish and enforce policies forbidding “unlawful … possession, or use of a controlled substance” in the workplace,” 41 U.S.C. Section 8102(a)(1)(A). It is common for such employer policy statements to define as “use” or being “under the influence” as when the employee has any detectable trace of the banned substance in his system. Because MMA may define “under the influence” differently, it injects ambiguity into enforcement of these policies. Is an employer’s disciplinary action permitted only when the employee’s blood THC level exceeds 10 nanograms per milliliter, or is it more likely that because marijuana remains illegal under federal law any use prohibited by employer policy can result in discipline? Because MMA Section 2103(b)(2) states affirmatively that employers are not required “to make any accommodation of the use of medical marijuana on the property or premises” it is certainly arguable, even probable, that employers do not have to relax “zero tolerance” or “no use” policies for medical marijuana users. Support for this interpretation is also found in subsection (b)(3), which excuses employers from “committing any act that would put the employer … in violation of federal law.”
The imprecision of the MMA’s statutory language addressing employment injects needless uncertainty into the employer-employee relationship, which likely will not be resolved absent litigation. A close reading of the MMA, however, suggests that the statute does not dramatically alter the heretofore well-established rules applicable to marijuana in the workplace. This conclusion is consistent with the holding of Coats v. Dish Network, 350 P.3d 849 (Co. 2015), in which the Colorado Supreme Court ruled that Colorado’s medical marijuana law did not confer a “right” to use marijuana: “Having decided this case on the basis of the prohibition under federal law, we decline to address the issue of whether Colorado’s Medical Marijuana Amendment deems medical marijuana use ‘lawful’ by conferring a right to such use.”