Pa. Law protects Workers approved for Medical Marijuana — once they use it, it's a different story

Vague legal safeguards for medical marijuana users in Pennsylvania are forcing patients to choose between their job and a drug they say has changed their life, and leaving skittish employers vulnerable to lawsuits, according to a three-month Spotlight PA investigation.

While state law protects workers from being fired or denied a job just for having a doctor’s permission to use marijuana, those protections become opaque when people actually take the drug — regardless of whether they do it in their personal time.

“It essentially makes no sense,” Pittsburgh attorney John McCreary Jr., who represents employers, told Spotlight PA.

Some jobs are specifically regulated by state and federal drug testing rules, but most fall into a gray area that leaves the interpretation of the rules up to employers and the courts. That leads to inconsistency and what employers see as a lose-lose scenario: Either risk a wrongful termination suit, or potentially allow an unsafe work environment.

Despite widespread demands for clarity from businesses, cannabis advocates, attorneys, and at least one judge, the legislature and governor have so far failed to explicitly outline the rights of scores of workers and employers.

A review of more than a dozen state and federal lawsuits by Spotlight PA highlights the law’s ambiguity, showing the ramifications faced by legal marijuana users. Among them:

• A worker at a Northumberland County distribution center was sent home and demoted after his medical marijuana card fell out of his wallet at work, his attorneys claimed in a lawsuit. They said the demotion came with a nearly 50% pay cut, leaving him no choice but to quit.
• A worker from Mifflin County lost his job directing traffic after he asked for information on his company’s medical marijuana policy, a conversation in which he voluntarily revealed that he used the drug outside of work. That led the company’s president to flag his marijuana use as a “public safety issue” and issue him an ultimatum: pass a drug test or lose his job.
• An Allentown company fired a warehouse worker after he tested positive for marijuana use. The company then filed a lawsuit to challenge the fired worker’s ability to collect unemployment benefits.

“Taxpaying medical marijuana cardholders are finding really no safe harbor on the job, which should be guaranteed under existing Pennsylvania law,” Todd Eachus, a member of the pro-cannabis legalization group Perfectly Normal, told lawmakers last year.

For the more than 400,000 medical marijuana patients in the state, the stakes are high. Losing a job over a positive drug test can put unemployment benefits at risk. It’s expensive and time-consuming to fight these cases in court — and the outcome is uncertain.

Pennsylvania’s medical marijuana law doesn’t specifically address the rights of patients to use the drug when they aren’t at work, and unlike some other states, it doesn’t include protections for them if they fail a drug test but are not impaired.

The lack of clarity is frustrating for employers too. More than 30 employer groups, including the Pennsylvania Chamber of Business and Industry, have urged the legislature to provide clear guidance on marijuana and workplace safety issues.

“Employers in general are not opposed to medical marijuana,” Alex Halper, director of government affairs for the chamber, told Spotlight PA. “They just want to know what the rules are when they’re hiring for safety-sensitive positions.”

The safety question is a complex one. Marijuana can impair a person’s judgment, coordination, and balance, according to a report from the National Institute on Drug Abuse. But multiple studies show that commonly used urine drug screens might indicate that someone used marijuana days or weeks ago. The tests don’t tell you whether an employee was impaired at work.

When Pennsylvania lawmakers successfully passed a medical marijuana bill in 2016, they set specific blood limits for users working in a few jobs: ones that require people to operate certain chemicals, high-voltage electricity, or any other public utility. But restrictions on other workers — such as those working at heights or in confined spaces — are more vague.

The law also allows employers to prevent workers “from performing any duty which could result in a public health or safety risk while under the influence of medical marijuana,” a provision that can be interpreted many ways.

And while the law states that employers can’t discriminate against an employee “solely on the basis of such employee’s status as an individual who is certified to use medical marijuana,” Spotlight PA has found that protection has significant limits.

Pennsylvania’s law doesn’t specifically address the rights of patients to use the drug when they aren’t at work, and unlike some other states, it doesn’t include protections for them if they fail a drug test but are not impaired.

“[The law] kind of gives with one hand and takes it away with the other hand,” said Judith Cassel, a Harrisburg attorney who specializes in cannabis issues. “So employers and employees are both left with a lot of ambiguity.”

Some places have found a way to reduce uncertainty. Pittsburgh’s firefighters union worked out a deal with city officials that protects medical marijuana cardholders who use the drug off duty. In Philadelphia, elected officials passed a ban on pre-employment marijuana screenings for many jobs.

And some states offer stronger protections. Laws in Arizona, Minnesota, and Delaware, for instance, say employers can’t discriminate against patients based solely on a positive drug test for marijuana metabolites or components.

But so far, Pennsylvania lawmakers haven’t done the same, and attempts to change protections have run into obstacles. The Pennsylvania Supreme Court also has not issued an opinion that specifically clarifies protections for workers.

Businesses don’t want to have to guess which positions are appropriate for medical marijuana patients and which ones are off limits, said McCreary, the Pittsburgh attorney who has represented employers in these disputes.

“They took what was a bright line rule … and they completely muddied it up in a way that nobody can really make any sense out of,” McCreary said of lawmakers.