Exceptions to Employment Protection under the Pennsylvania Medical Marijuana Act
In a previous article we discussed the Pennsylvania Medical Marijuana Act (the Act) and the employment protection language included therein. Here we will discuss some of the exceptions to those protections. In addition, many activities related to the use of medical marijuana are by their very nature violations of federal law, and the Act protects employers or any person acting on the employer’s behalf, which could be interpreted to mean their workers, from any requirement to act in a manner that violates federal law.
The Act contains separate exceptions to the employment protection provision discussed previously as a result of employer friendly amendments passed in the House, and it has yet to be determined the extent to which the exceptions could swallow the rule. The first exception applies to patients working with any public utility, high voltage, electricity, or chemicals. Section 510 discusses Prohibitions on the use of the Medical Marijuana in the work place.
Section 510. Prohibitions.
The following prohibitions shall apply:
(1) A patient may not operate or be in physical control of any of the following while under the influence with a blood content of more than 10 nanograms of active tetrahydrocannabis per milliliter of blood in serum:
(I) Chemicals which require a permit issued by the federal government or a state government or an agency of the federal government or a state government.
(II) High-voltage electricity or any other public utility.
The next three exceptions apply to job duties performed by the worker, and are subject to much interpretation, at least pending the issuance of clarifying regulations. They include working at heights, in confined spaces, and working in any condition the employer deems life threatening or a public health or safety risk.
(2) A patient may not perform any employment duties at heights or in confined spaces, including, but not limited to, mining while under the influence of medical marijuana.
(3) A patient may be prohibited by an employer from performing any task which the employer deems life-threatening, to either the employee or any of the employees of the employer, while under the influence of medical marijuana. The prohibition shall not be deemed an adverse employment decision even if the prohibition results in financial harm for the patient.
(4) A patient may be prohibited by an employer from performing any duty which could result in a public health or safety risk while under the influence of medical marijuana. The prohibition shall not be deemed an adverse employment decision even if the prohibition results in financial harm for the patient.
As you can see, these exceptions to the employment protections will potentially affect a large portion of tradespersons, transportation industry workers, and public sector employees, rendering them extremely vulnerable to employer sanctions, up to and including termination of employment, for the use of medical marijuana. In addition, it is important to note that whether the “life-threatening” exception to the employment protections applies to a particular task is currently entirely at the discretion of the employer. We can reasonably expect that many employers will attempt to apply this discretion in a very broad fashion, and we await clarification of the permissible degree of employer discretion regarding these provisions of the Act.