PELRAS Update | December 2021 – Pre-Employment Drug Testing and Medical Marijuana

Joshua C. Hausman, Esq. and Julie A. Aquino, Esq., Campbell Durrant, P.C. | December 2021

In 2016, Pennsylvania became the 24th state to legalize medical marijuana by the passage of the Medical Marijuana Act.  The Act established access to medical marijuana for individuals with qualifying health conditions from approved and licensed dispensaries. While the Act was comprehensive in establishing a framework for patients, growers, and dispensaries, it was much less thorough in defining how employers in Pennsylvania should address medical marijuana use by job applicants and employees.

The Medical Marijuana Act does not require employers to accommodate the use of medical marijuana in the workplace, and employees may be disciplined for being under the influence in the workplace. However, the Act prohibits employers from discharging, threatening, refusing to hire, or discriminating against employees “solely” on the basis of the employee’s “status” as a certified medical marijuana user.  The Act does not require employers to do anything which would place them in violation of federal law, including Federal Motor Carrier Safety Administration regulations and the Drug Free Workplace Act. The Act also prohibits employees from working at heights or in confined spaces while under the influence, and employers may prohibit employees from performing tasks deemed to be life-threatening or a public health or safety risk while under the influence of medical marijuana.

A question left unanswered under the current version of the Medical Marijuana Act is whether a failed drug test, standing alone (without evidence of being “under the influence” in the workplace), such as a pre-employment drug test, remains a legitimate basis to disqualify an applicant or employee who is a certified medical marijuana user.  The United States District Court for the Eastern District of Pennsylvania recently answered that question, although it is only one district court decision in what will presumably be a longer line of cases under the Medical Marijuana Act over the coming years. Reynolds v. Willert Mfg. Co. (E.D. Pa. Oct. 19, 2021).  

In Reynolds, Plaintiff was hired as a maintenance manager and did not notify his employer that he was a certified medical marijuana user. His employment was contingent on successful completion of drug test which was administered approximately three weeks into his employment. When he tested positive for D-THC-marijuana metabolite, his employer discharged him, after which he filed a lawsuit alleging unlawful discrimination under the Medical Marijuana Act.

The district court granted the employer’s motion for summary judgment and dismissed the lawsuit. The district court held that Reynolds could not establish that his employer terminated him on the sole basis that he was a certified medical marijuana user. In fact, the employer was not even aware of Reynolds’ status as a medical marijuana user when he failed the drug test. The court reasoned that unlawful employment discrimination only occurs under the Act where the employee’s status as a medical marijuana patient is the sole or “but-for” cause of the adverse employment action, which Reynolds could not establish. It is unknown if the outcome in this case would have been different if Reynolds had notified his employer prior to taking the drug test of his status as a certified medical marijuana user, and if so, whether it would have then mattered whether a portion of his job duties were “safety-sensitive.”

While this decision should be welcomed by employers seeking clarity as to pre-employment drug testing policies relative to medical marijuana, this one case is unlikely to be the final word on the subject, and the particular facts of the case suggest that the outcome could have been different if Reynolds had discussed his status as a medical marijuana patient prior to taking the drug test. Therefore, employers should continue to consult with legal counsel about how to best address pre-employment drug testing and certified medical marijuana patients under the employer’s drug and alcohol policies.

It is also worth noting that Senate Bill 749 was introduced in the Pennsylvania General Assembly earlier in 2021. As drafted, the bill would provide greater specificity to employers on several matters, including defining precisely what job duties are “safety-sensitive,” including driving ordinary motor vehicles and operating machinery or power tools. Notably, the bill as currently written, would allow employers to disqualify applicants or employees from safety-sensitive positions based on medical marijuana use. However, the future of the bill, which is pending in a committee in the Pennsylvania General Assembly, is unknown at this time.

Until there is greater clarity regarding pre-employment drug testing practices relative to medical marijuana, employers should consult with legal counsel. There currently is no “one size fits all” recommended medical marijuana policy because the policy will depend on the employer’s standpoint on off-duty medical marijuana use and whether the employer takes into account the nature of the job duties performed with regard to its policy. For example, employers should consult with counsel regarding applicants or employees who are certified medical marijuana patients and whose job duties involve driving regular, non-CDL vehicles during work hours. The attorneys at Campbell Durrant remain available to assist employers with navigating the still-uncertain waters under the Medical Marijuana Act.