Medical Marijuana in the Workplace

Posted on October 15, 2019

Contributing Authors: Mark T. Wassell and Mark J. Kuhar

Originally published in October 2019

Pennsylvania's Medical Marijuana Act (MMA)

What is the purpose of Pennsylvania’s MMA?

Individuals who have a certification from a medical provider and an identification card issued by the Pennsylvania Department of Health may lawfully access medical marijuana to aid in the treatment of serious medical conditions.

Marijuana may be dispensed in the form of pills, oils, topical gels, creams, ointments, tincture, liquid, or a form medically appropriate for administration by vaporization or nebulization, including dry leaf or plant form. Smoking marijuana remains illegal in Pennsylvania.

Employment-related provisions of the MMA

A patient who is under the influence with a blood content of more than 10 nanograms of active THC per milliliter of blood in serum may not operate or be in physical control of chemicals which require a government permit, or high-voltage electricity or any other public utility, and may not perform any employment duties at heights or in confined spaces while under the influence of medical marijuana.

An employer may prohibit a patient who is under the influence of medical marijuana from performing any task which the employer deems life-threatening, or from performing any duty which could result in a public health or safety risk.

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.

No employer is required to accommodate the use of medical marijuana on its property or premise of any place of employment.

An employer may 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 his/her position.

No employer is required under the MMA to commit any act that would put the employer or any person acting on its behalf in violation of federal law. For example, employers may prohibit employees whose positions require them to have a commercial driver’s license (CDL) from using any form of medical marijuana.

Marijuana is still an illegal substance under Federal Law

Also, federal law does not recognize any distinction between medical and recreational marijuana.

The Controlled Substances Act (CSA) is the federal drug policy which regulates the manufacture, importation, possession, use and distribution of certain narcotics, stimulants, depressants, hallucinogens, anabolic steroids and other chemicals. The CSA categorizes these substances into one of five schedules based upon the substance’s medicinal value and potential for abuse, with Schedule I having the highest potential for abuse and Schedule V having the least potential for abuse.

Marijuana is classified as a Schedule I drug. Schedule I includes drugs with no currently accepted medical use, a high potential for abuse, and a lack of accepted safety for use of the drug under medical supervision.

Testing for Marijuana Use

Drug Testing

Blood and oral fluid tests work differently than urine tests because the parent drug (active THC rather than just its metabolites) can be found in blood and saliva. Blood and oral fluid tests are far more useful for employers than urinalysis. Yet, few employers use them.

Blood tests are generally reserved for specific situations where blood is being collected for other reasons. High levels of delta 9-tetrahydrocannabinol (THC) in the blood indicate recent use, while lower levels can remain in the blood stream for several hours to a couple of days.

Similarly, oral fluid tests that look for delta-9 THC (active THC) can detect recent exposure. The short detection period can tell whether someone has used marijuana recently (within 4 to 6 hours of the test), but not whether the person uses the drug more or less regularly. This type of test is becoming more popular in the workplace because it is easy to administer, and the short detection window can help answer the question of whether or not a person has used marijuana while at work or just before work.

Some oral fluid tests are designed to detect only THC-COOH (a THC metabolite), and while they also can show recent marijuana use (within 24 to 36 hours of the test), they are not effective for determining whether a person may be impaired at the time of the test.

There is no universal standard for how much active THC evidences impairment.

Historically, most employment-related drug tests have been done with urinalysis because of the ease of obtaining samples for testing, it’s non-invasive, and it allows for background screening since drug use can be detected over a period of several days or weeks. Plus, in the past, an employer could lawfully forbid and discipline for all types of marijuana use. That clearly is no longer the case.

A urine test for marijuana looks primarily for 11-nor-delta-9-tetrahydrocannabinol (THC-COOH), a metabolite of delta-9-THC.

Because a urine test looks for the presence of drug metabolites, which remain in the body for a longer period of time (the degree to which depends on the how much of and how often the drug is used, how it is administered, and variations in individual metabolism, metabolite accumulation in the chronic user, and urine volume due to level of hydration, age and other factors), a urine test can show the likelihood of prior marijuana use, but not how recently it was used, or whether a person was intoxicated or impaired at the time the test was administered, and it cannot assess any degree of risk associated with allowing an employee who has tested positive to continue performing their work.

Given the analysis used in essentially all recent court cases which focus intently on evidence of actual impairment, the focus of marijuana testing must shift away from detecting any evidence of prior marijuana use (testing urine for an inactive metabolite) to whether or not the individual was impaired by THC in the workplace.

Currently, there is no consensus on how to measure impairment from marijuana. Many variables contribute to how a person is affected by marijuana use, including but not limited to the manner in which the drug was ingested and how much.

The issue for employers with marijuana drug testing is that positive results do not reliably establish that an employee was impaired by the drug while on the job. You can discipline an employee for being under the influence, but, for the above reasons, you can’t assume the employee was under the influence based solely on a positive test.

Recent Employment Law Cases Involving Medical Marijuana

Wild v. Carriage Funeral Holdings (New Jersey, March 27, 2019)

On March 27, 2019, the Superior Court of New Jersey Appellate Division reversed the trial court’s dismissal of plaintiff’s disability claim under the New Jersey Law Against Discrimination (LAD).

Plaintiff, Justin Wild, a funeral director, claims he was fired after his employer, Carriage Funeral Holdings, Inc., discovered he was using medical marijuana as part of his cancer treatment. In 2016, Wild was involved in a traffic accident while driving in the course of his duties. Wild, who was not at fault in the accident, was taken to the hospital for treatment of his injuries. At the emergency room, he told hospital staff that he was certified to use medical marijuana. The physician determined that Wild was not under the influence of marijuana and therefore did not require a drug test. Wild was sent home, where he took the pain medication prescribed for him at the hospital and used medical marijuana. Later, Carriage insisted that Wild submit to a drug test, even though his physician had determined he was not under the influence at the time of the accident, and having been advised that Wild used medical marijuana. Wild submitted to the drug test and tested positive, after which he was fired for violating a company policy requiring employees to tell their supervisor if they are using any medication that may impact their ability to safely perform their duties.

Wild filed a lawsuit against Carriage alleging that his termination was in violation of the LAD because he had a disability (cancer), which he was treating in accordance with his physician’s instructions and New Jersey’s Compassionate Use of Medical Marijuana Act (CUMMA). The trial court dismissed the case, finding that CUMMA “does not contain employment-related protections for licensed users of medical marijuana.” Wild appealed the trial court’s decision.

The Appellate Division disagreed with the trial court, applying a more narrow interpretation of CUMMA. The Appellate Division acknowledged that, while CUMMA does not “require … an employer to accommodate the medical use of marijuana in any workplace,” that restriction is limited to use in the workplace. The trial court interpreted the language to mean that medical marijuana users have no employment-related protections at all, but the Appellate Division found that the language does not affect any rights a medical marijuana user may have under the LAD, stating that even though there is no reasonable accommodation of medical marijuana use required by CUMMA, that “does not mean that the LAD may not impose such an obligation.” Because Wild never sought an accommodation to use medical marijuana in the workplace or on working time, the Appellate Division found that his claims should not have been dismissed outright by the trial court.

On July 16, 2019, the New Jersey Supreme Court agreed to review the Appellate Division’s decision and the case remains pending.

Thomas Lee v. Albertsons (Arizona, June 2019)

Plaintiff, Thomas Lee, was employed as a forklift driver for Albertsons, which had taken over operations from his previous employer, Safeway. Lee was a certified medical marijuana user for chronic pain from prior work-related physical strains and injuries. During his employment with Safeway, Lee had worked as a receiver and coder. When Albertsons took over, Lee was placed in a forklift driver position and given limited training. On his first day in the new position, while driving a forklift, a pallet loaded with noodles fell from an upper rack to the ground. The accident caused damage to the rack, the pallet of noodles, and an adjacent pallet containing a similar product. In accordance with Albertsons policy, Lee was required to undergo a post-accident drug test. Prior to the test, Lee advised the company that he had a medical marijuana card.

Lee tested positive for THC metabolites and his employment was terminated based on the positive drug test. Lee filed a lawsuit in the Maricopa County Superior Court claiming that he was not impaired at work and that his termination was discriminatory.

The Arizona Medical Marijuana Act provides that an employer may reassign, suspend, or terminate an employee in a “safety-sensitive” position based on a “good faith belief’ that the employee is engaged in the use of any drug that could impair performance, and that the employer may base its belief on, among other things, “results of a test for the use of alcohol or drugs.” The case is pending.

Palmiter v. Commonwealth Health Systems, Inc., et al. (Lackawanna Co., Pennsylvania, February 2019)

The Palmiter case alleges adverse employment action on the basis of a positive drug test resulting from off-duty medical marijuana use. The plaintiff, Pamela Palmiter, was employed by Medical Associates in Scranton, Pennsylvania as a medical assistant beginning in January 2017. Palmiter suffers from chronic pain, chronic migraines and persistent fatigue. In December 2018, she obtained certification from her doctor allowing her to use marijuana for the purpose of treating those conditions. Palmiter informed Medical Associates about her certification to use medical marijuana and was assured that it would have no effect on her employment. In early 2019, Medical Associates was acquired by Commonwealth Health. As an employee of Commonwealth Health, Palmiter was scheduled to undergo a drug test. She provided a copy of her medical marijuana certification to the testing lab. Shortly thereafter, her employment was terminated. Palmiter sued, claiming, among other things, that her termination was a violation of the Medical Marijuana Act, which prohibits adverse employment action solely on the basis of an employee's status as a certified medical marijuana user.

On April 15, 2019, the defendants filed a memorandum of law in support of preliminary objections to the complaint, arguing, among other things, that Palmiter's claims should be dismissed because (a) there is no private cause of action under Pennsylvania's Medical Marijuana Act; and (b) she has failed to allege facts that could overcome the presumption of at-will employment.

Plaintiff filed a third amended complaint on May 30, 2019. The case is still pending.

Proposed Legislation

In February 2019, PA State Representative Jake Wheatley introduced House Bill 50, which would legalize private recreational marijuana use in Pennsylvania by individuals 21 years of age or older.

In March 2019, PA Senators Daylin Leach and Sharif Street proposed a bill to legalize marijuana in Pennsylvania. Senate Bill 350 would, among other things, allow anyone who is at least 21 years of age to engage in private use of recreational marijuana. Each household could grow up to six marijuana plants at a time for personal use. Public use of marijuana would still be illegal, unless it was in a designated cannabis lounge, which businesses could own and operate.

House Judiciary Committee Chairman Jerry Nadler and Senator Kamala Harris have introduced the Marijuana Opportunity Reinvestment and Expungement Act (MORE Act), which proposes to remove marijuana from the CSA schedules of controlled substances and let states set their own policies without interference from the federal government.

Conclusion

Employers should understand the difference between active THC and THC metabolites and how to test for each.

Focus on impairment, not just positive test results. This should include training supervisors to recognize signs of impairment.

There is no “safety sensitive” provision/safe harbor that allows employers to discriminate against employees who have “only” THC metabolites in their systems. Credible evidence of impairment must be present to safely discipline medical marijuana users, or to keep them out of certain types of positions.

Contributing Authors: Mark T. Wassell and Mark J. Kuhar

Originally published in October 2019