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Pennsylvania - Considerations for Marijuana in the Workplace

  • Last Update on April 18, 2023

Medical
Marijuana Law:

Recreational
Marijuana Law:

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Employer Concerns – Significant to Review

  • Specific to Philadelphia, as of 1/1/2022, it is unlawful employment practice for employers to administer pre-employment testing of marijuana. The law provides some carve-outs (with more anticipated) such as positions regulated under a federal authority or subject to collective bargaining requirements which require marijuana testing, and certain positions in law enforcement, childcare, medical patients’ care, or one that could significantly impact the health and safety of other employees or members of the public.
  • Employers cannot discriminate based on legal medical marijuana status of a patient.
  • Employers are not required to accommodate use on company property; however, employers may have latitude as it relates to certain safety-sensitive activities as per Pennsylvania’s Medical Marijuana Act and Pennsylvania’s Human Relations Act (check with knowledgeable counsel).
    • Employers may prohibit employees from performing any duty that would pose a health or safety risk if the employee is under the influence of marijuana. Additionally, (Penn. Statutes Title 35 P.S. Health and Safety Section 10231.510) “…the prohibition shall not be deemed an adverse employment decision even if the prohibition results in financial harm for the patient.”
  • (Penn. M.M. Act Sec. 2102) “Nothing in this act shall be construed to require an insurer or a health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana.”

Testing

  • See Significant above.

Hiring/Termination

  • An employer cannot refuse to hire based on status of a legal medical marijuana patient.

Discipline

  • Nothing limits (Penn. M.M. Act Sec. 2103) “…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.”

Use/Possession

  • Flowers or any product used for smoking are not allowed to be sold, purchased or consumed.
  • Legal forms to include pills, oils, topical creams, tinctures, liquids and a form medically approved for vaping (which includes dry leaves or plant form).

Other Impacting Laws

(e.g., drug testing, workers’ compensation, unemployment)
  • It is against the law to drive, operate, or be in the physical control of a vehicle if there is any greater than 1ng/ml of THC metabolite in the driver’s system.
  • Pennsylvania has a law against aiding in an attempt or attempting to defraud a drug test.
  • An unemployment claim is not compensated when discharge is due to refusing to take or ‘failing’ a drug test, as long as it is implemented in compliance with an established substance misuse/abuse policy.
  • Apply the Checklist of Impacting Issues to Research provided by NDS for additional state laws and issues that can relate to and/or impact your operations regarding employee use of marijuana.

Sources

(e.g., Bill Number, Authority)
Disclaimer

This resource is designed to provide accurate information regarding the subject matter covered. It is provided with the understanding that those involved in the resource are not engaged in rendering legal counsel. If legal advice is required, the services of a competent professional should be sought.

Caution

Where there are quotation marks, the language is directly from published law. This information is only a summary of some issues and it will benefit the reader to review the information in context (go to the law) and in relation to other laws (e.g. workers compensation, unemployment law).

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