Dazed and Confused: What Should Pennsylvania Employers do with Their Drug Testing Programs in Light of Shifting Legal Trends Surrounding Marijuana Use?

By: Joseph L. Gordon

Pennsylvania is on the cusp of a significant change as the State’s medical marijuana industry becomes fully operational. This summer, Pennsylvania awarded permits to twelve businesses to grow marijuana and twenty-seven businesses to sell medicinal marijuana. By June 2018, residents can start purchasing marijuana from dispensaries for approved medical purposes, and the industry is projecting first-year sales of 150 million dollars. Once the dispensaries open, the consumption of marijuana by Pennsylvania residents may increase substantially.

Given the magnitude of anticipated change, Pennsylvania employers should prepare for the likelihood of increased marijuana usage by their employees. As a starting point, employers with mandatory drug testing programs need to closely monitor medicinal marijuana legal developments, not just because of the tension between state disability discrimination laws and the Federal Controlled Substances Act’s prohibition on marijuana use generally, but also because of the conflict between state laws permitting medicinal marijuana use and certain industry-specific regulations banning the use of medicinal marijuana. As an example, the Department of Transportation’s drug and alcohol testing regulation, 49 CFR § 40.151(e), prohibits companies from allowing individuals in safety sensitive positions in the transportation industry to use marijuana for medicinal purposes, even if they live in a state that permits such activity.

Most employers have always operated in a world where they could lawfully terminate an employee for failing a drug test, including due to the presence of marijuana. It did not matter whether the drug use occurred during non-working hours. For now, that is the law in Pennsylvania. That used to be the law in Massachusetts, Rhode Island, and Connecticut; it no longer is…..or at least the law is no longer as black and white. In states allowing medical marijuana, employers may have to “accommodate” an employee’s medical marijuana use as a reasonable accommodation for an employee’s disability. Over the past few years, disability discrimination case law has evolved to the point where almost any type of medical condition is considered a “disability.” Pennsylvania’s medical marijuana authorization statute enumerates those conditions for which marijuana can be used and all of those conditions might be considered a disability under current case law.

Whether employers with blanket policies prohibiting marijuana use will have to modify their policies to comply with disability discrimination laws is a to-be-determined question in Pennsylvania. The answer will likely depend on the specific facts. For example, while a commercial truck driver is within his rights in using medicinal marijuana for a legitimate medical condition, his employer, as a company subject to the above-referenced Department of Transportation regulation, is within its rights to terminate that driver for using medicinal marijuana, even though that conduct is lawful under state law. Still, for most companies that rely upon drug tests, there will not be bright line answers to questions about how they should administer their drug test policy until the case law in this field becomes more clearly defined. Nevertheless, companies should be consulting counsel in the event their drug testing practices are challenged in court or during a government agency investigation.

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