(Originally presented as written materials for Bench-Bar Conference in Atlantic City held 9/21/2024)
1. At Work & On the Job: What Happens if I Fail a Drug Test at Work and Have a Valid Medical Marijuana Card?
Medical marijuana patients are provided legal protection under the Medical Marijuana Statute. Section 2103(b)(1) states that, employers may not fire, refuse to hire, threaten, discriminate, or retaliate against an employee “solely on the basis of the employee being a medical marijuana patient.” Furthermore, patients cannot be denied the same privileges as other employees including: wages, benefits, work location, work conditions, “based solely on the basis of the employee being a medical marijuana patient.”
The quoted language was interpreted by our Superior Court as creating an implied cause of action for wrongful termination. Palmiter v. Commonwealth Health Systems, 2021 Pa. Super 159 (2021).
Pennsylvania Courts have also ruled that employees who fail a drug test for marijuana and possess a valid medical marijuana card are still eligible for unemployment. Jack Lehr Electric v. UCBR, 255 A.3d 712 (Pa. Cmwlth, 2021).
While Employers cannot refuse to hire or fire based solely on medical marijuana use, medical marijuana patients, like every worker, are still subject to state and Federal laws which may prevent them from working.
Employers are not required to allow patients to use medical marijuana at work: “the [Medical Marijuana Act] provides that employees cannot be discriminated against due to their status as certified users of medical marijuana, but does not require that an employer provide an accommodation therefor.” Harrisburg Area Canty. Coll. v. Pa. Human Rels. Comm'n, 245 A.3d 283, 290 (Pa. Commw. Ct. 2020).
Discipline is also allowed for working under the influence:
Section 2103(b)(2) of the PA Medical Marijuana Act
Nothing in this act shall require an employer to make any accommodation of the use of medical marijuana on the property or premises of any place of employment. This act shall in no way limit 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.
Additional Employer protections are afforded in Section 2103(c) which states “Nothing in this act shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of Federal law.”
This language would ostensibly allow Employers to lawfully refuse to hire medical marijuana patients if they perform contracting work for the Federal Government. This would apply to military defense and other Federal contractors. This language would also protect employers that operate subject to Federal regulations. Examples would include trucking companies, whose drivers must comply with Federal Department of Transportation regulations. It would also likely apply to public transit systems which are subject to the same guidelines, and which also receive significant funding through the Federal government.
In addition, both Pennsylvania and Federal law allow Employers to refuse to hire medical marijuana patients for driving positions and those who perform dangerous/safety sensitive work:
Section 510 of the PA Medical Marijuana Act
(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.
(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.
Pennsylvania further has drug testing guidelines for CDL drivers, which are found in the Management Directive 505.34 CDL Drug & Alcohol Testing Requirements
Manual 505.5, Amended: CDL Drug & Alcohol Testing & Related Procedures. Marijuana use by CDL drivers, medical or otherwise, is prohibited
Section One (2)(b): Prohibitions for Controlled Substances. CDL-Covered
Employees shall not:
(1) Perform safety-sensitive duties when possessing or using any controlled substance, except under instruction of a physician who has advised the employee that the non-Schedule I controlled substance does not adversely affect the employee's ability to safely operate a CMV;
(2) Perform safety-sensitive duties after testing positive for controlled substances, until the requirements in Section Three of this manual are met; and
(3) Refuse to submit to a drug test as required by this program.
CDL drivers are also subject to similar Federal Department of Transportation (DOT) Guidelines (49 CFR Part 40). Those provides that the cutoff for a positive urine or body fluid test is 50 nanograms of THC per milliliter. This is not as stringent as the 10 ng cutoff found in Section 510 of the PA Medical Marijuana Act. However, unlike Section 510 which requires blood testing, Federal guidelines provide for testing of urine and/or saliva. Because urine testing is not as precise as blood testing, the cutoff for a positive result is increased.
Federal DOT guidelines like the Pennsylvania laws discussed above do not distinguish between recreational and medical users of marijuana when it comes to positive test results. That is because medical marijuana and marijuana are essentially the same product, despite the semantics. The only difference is legal, namely the reason an individual chooses to use marijuana. Therefore, having a medical marijuana card will not obviate Federal or state law when it comes to driving and safety sensitive jobs. An Employer can refuse to hire, fire, or accommodate a medical marijuana patient just as it can refuse to hire, fire, or accommodate a recreational marijuana user if the job involves driving or safety-sensitive work. The possession of a valid medical marijuana card does not change that. Contrary to popular belief, a medical card is not a “get out of jail free” card. Legitimate safety concerns will always allow an employer to deny employment to medical marijuana patients who fail required drug screens.
This begs the question, what is a safety-sensitive job? Section 510 explicitly defines such jobs as including those who handle chemicals, high voltage electrical workers, miners, and those working at heights, such as linemen or tree cutters. Truckers and bus drivers and would also be deemed safety-sensitive as subject to CDL guidelines. A reasonable argument can be made that any type of driving is safety-sensitive, and that Employers can refuse to hire any driver, such as delivery drivers, if the worker is legally using medical marijuana and fails a drug test. The same logic would likely hold true for companies providing company trucks or vehicles to workers.
Beyond drivers, Section 510 of the Medical Marijuana Act grants significant discretion to Employers to decide which job positions are safety-sensitive and subject to drug testing as a condition of employment. If a job involves tasks which the Employer deems life-threatening to that employee or other employees, poses a safety risk, or poses a risk to public health, a valid medical marijuana card will not protect a worker who fails a marijuana test.
2. In the Courtroom: Can I be Reimbursed for the Cost of Treatment with Medical Marijuana in Workers’ Compensation and Personal Injury Cases?
Injured workers who use medical marijuana to treat their work injuries are eligible to have their out-of-pocket expenses reimbursed by workers’ compensation insurance companies so long as the treatment with medical marijuana is reasonable, necessary, and related to the work injury. So concluded the Pennsylvania Commonwealth Court in Fegley v. WCAB (Firestone Tire & Rubber), 291 A.3d 940 (Pa. Cmwlth, 2023). In reaching this conclusion, the Court relied on the general humanitarian language contained in Pennsylvania’s Medical Marijuana Act as well as Section 2103(a) which provides that legal patients cannot be prosecuted or denied any “right or privilege” solely due to their status as a medical marijuana patient:
Section 2103(a) of the PA Medical Marijuana Act
Section 2103. Protections for patients and caregivers.
(a) Licensure. --None of the following shall be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including civil penalty or disciplinary action by a Commonwealth licensing board or commission, solely for lawful use of medical marijuana or manufacture or sale or dispensing of medical marijuana, or for any other action taken in accordance with this act:
(1) A patient.
(2) A caregiver.
(3) A practitioner.
(4) A medical marijuana organization.
(5) A health care medical marijuana organization or university participating in a research study under Chapter 19.
(6) A clinical registrant or academic clinical research center under Chapter 20.
(7) An employee, principal, or financial backer of a medical marijuana organization.
(8) An employee of a health care medical marijuana organization or an employee of a university participating in a research study under Chapter 19.
(9) An employee of a clinical registrant or an employee of an academic clinical research center under Chapter 20.
(10) A pharmacist, physician assistant or certified registered nurse practitioner under section 801(b).
In addition, the Court concluded that while Section 2102 of the Medical Marijuana Act does not require insurance “coverage” of medical marijuana, it does not preclude reimbursement of out-of-pocket medical marijuana costs. This was because the plain language of Section 2102 did not specify that reimbursement was precluded, and because reimbursement and coverage are not synonymous and are different legal concepts involving financial transactions with completely different parties.
Finally, the Court concluded that such a reimbursement would not violate Federal law, specifically the Controlled Substances Act (CSA), as the act of reimbursement does not require the carrier to perform any act precluded by the CSA such as manufacturing or distributing a controlled substance.
The reasoning of Fegley was applied by the Commonwealth Court to permit injured workers to be reimbursed for out-of-pocket CBD costs in Schmidt v. WCAB (Schmidt Kirifides & Raffias PC, 305 A.3d 1137 (Pa. Cmwlth. 2023). The Schmidt case is currently on appeal to the Pennsylvania Supreme Court.
Fegley was also cited and applied to allow a claim for reimbursement of medical marijuana expenses in personal injury cases by the Pennsylvania Superior Court in D’Amico v. Covanta Holding Corp., 692 EDA 2023 (Pa. Super. Ct. Feb. 28, 2024). While not precedential, this ruling has opened the door to plaintiffs to seek reimbursement of medical marijuana expenses as part of the damages sought.
3. As a Parent/Guardian: Can I Lose Custody of My Kids if I Have a Medical Marijuana Card?
Section 2103(c) of the Medical Marijuana Act prohibits custody factfinders from penalizing a parent in a custody proceeding based solely on his or her medical marijuana use.
Section 2103(c) of the PA Medical Marijuana Act
Custody determination. --The fact that an individual is certified to use medical marijuana and acting in accordance with this act shall not by itself be considered by a court in a custody proceeding. In determining the best interest of a child with respect to custody, the provisions of 23 Pa.C.S. Ch. 53 (relating to child custody) shall apply.
However, the custody factfinder is allowed to determine to whether that lawful medical marijuana use interferes with the parent’s ability to care for their child. C.A.R. & H.R. v. C.P. & J.M., 224 A.3d 729 (Pa. Super 2019).
As for parents who have children who need to use medical marijuana at school, the PA Department of Health has issued the below written guidance (www.healthpa.gov
Recommended Guidance: A parent, legal guardian or caregiver may administer medical marijuana to their child/student on school premises provided that the parent, legal guardian, or caregiver: (1) provides the school principal with a copy of the Patient Authorization Letter; and (2) notifies the school principal, in advance, of each instance in which the parent or caregiver will administer the medical marijuana to the child/student. The school principal shall provide notification to the school nurse in each instance a parent or caregiver will be administering medical marijuana to the child/student as well. The parent/caregiver shall follow all school protocols applicable to visitors to the school during the school day. A parent, legal guardian or caregiver shall bring to the school and administer the medical marijuana to their child/student without creating a distraction, and shall promptly remove any excess medical marijuana and related materials from the school premises after the administration of medical marijuana is complete. The school shall provide a secure and private location for the parent/legal guardian/caregiver to administer the medical marijuana to the student. Students themselves shall not be permitted to possess any form of medical marijuana at any time on school property or during any school activities on school property.
Expiration: The recommended guidance will remain in effect until the Pennsylvania Department of Education promulgates regulations regarding the possession and use of medical marijuana in the commonwealth's schools.
4. While Driving: If I am Pulled Over and My Car Smells like Weed, Does That Give the Police Probable Cause to Search My Car Without a Warrant?
The PA Supreme Court, in Commonwealth of PA v. Barr, 266 A.3d 25 (Pa. 2021), concluded that the odor of marijuana alone does not amount to probable cause to conduct a warrantless search of a vehicle. The court reasoned that due to the legalization of medical marijuana in Pennsylvania, the plain smell of marijuana is no longer per se indicative of a crime. However, the odor of marijuana may be considered as a factor in the totality of the circumstances establishing probable cause.
5. While Driving: Can I Be Charged with DUI If I Have a Medical Marijuana Card?
Yes, if you are pulled over and fail drug testing, you can be charged with a DUI. It does not matter if the marijuana was bought legally in a medical dispensary or on the street. The threshold for DUI is 1 ng/mL of THC in your blood. There have been bills introduced in the state legislature to treat medical cannabis patients differently than recreational users, but these have not been enacted into law.
6. On Parole: I Am on Probation. Can I Get a Medical Marijuana Card?
Yes, The PA Supreme Court held in Gass et al v. 52nd Judicial District, Lebanon County, 223 A.3d 212 (Pa. 2020). The court reasoned that Lebanon County’s policy of barring illegal drug use by parolees did not extend to barring legal medical marijuana use consistent with the Pennsylvania Medical Marijuana Act.
Incarcerated individuals are not eligible to become medical marijuana patients per the language of the Act. In addition, parolees may legally be excluded from delivering medical marijuana to patients as a caregiver. However, parolees can become legal medical marijuana patients because the Act could have barred this and did not.
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