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Can My Employer Fire Me for Using Medical Marijuana?

March 1st, 2021

Even though medical marijuana was legalized in Pennsylvania in 2016 for certain serious medical conditions, marijuana is illegal at the federal level. Over half a million patients and caregivers are registered to use medical marijuana. Workers may wonder if they entitled to any protections under the law if they use medical marijuana. Certain laws protect medical marijuana users. If a worker is being discriminated against for medical marijuana, they should speak to an employment attorney.

The Pennsylvania Medical Marijuana Act legalized medical cannabis and went into effect in 2016. It was not until two years later that the first dispensaries started serving patients. Now, there are dozens in the state, and medical marijuana is accessible to Pennsylvanians who are legally certified to use it. Nowadays, there is still a lot of uncertainty surrounding medical marijuana use.

A recent article in the Philadelphia Inquirer reads that companies cannot discharge, refuse to hire, or otherwise negatively affect an employee’s pay, employment terms or conditions, or privileges because they are a registered medical marijuana user. Those protections include being denied a job for not passing a drug test or being fired for failing a drug test if the employee has been prescribed medical marijuana.

What are the Qualifications to Use Medical Marijuana in Pennsylvania?

To qualify, a patient has to be under the care of a physician who provides certification at an in-person visit. This documentation states that the patient has one of the qualifying medical conditions and that they could benefit from medical marijuana. These physicians also have to register, undergo a course, and alert the state health department if the patient no longer needs access to use the cannabis.

Qualifying medical conditions include the following:

  • Terminal illnesses
  • Cancer
  • Parkinson’s disease
  • Inflammatory bowel disease (IBD)
  • Huntington’s disease
  • Crohn’s disease
  • Autism
  • Seizures
  • Sickle cell anemia

Patients might qualify if they have other debilitating illnesses. Patients must present identification, but private health insurers and government medical assistance programs are not required to reimburse the costs for the medical marijuana. Additional regulations pertaining to how the cannabis is distributed and administered and usage limitations also apply.

Americans with Disabilities Act

There is somewhat of a gray area when it comes to the legalities of medical marijuana. The Americans with Disabilities Act (ADA) does not afford protection to medical marijuana users because it is a federal law. However, in 2017 the Massachusetts Supreme Court ruled that a person who legally used medical marijuana according to the state laws was protected from disability discrimination. In this case, a plaintiff informed their prospective employer that they used medical marijuana and would fail a pre-employment drug test. The plaintiff had requested a reasonable accommodation, but the company did not want to waive their policy. The court concluded that the employer had violated the state’s disability discrimination laws.

What is the Law Regarding Medical Marijuana Use in Pennsylvania?

New Jersey and Delaware courts have made decisions that follow the Massachusetts ruling, which established a precedent. In these states, employers that do not engage in interactive processes with potential and current employees who share information about their medical marijuana use could be exposed to disability discrimination claims.

In a recent Pennsylvania court case, a worker’s medical marijuana identification card expired and they tested positive on a drug test for employment. The worker did obtain a doctor’s note and renewed the identification card, but they were still terminated by their employer.

Last fall, the company moved to dismiss the plaintiff’s claims that they had violated the Pennsylvania Medical Marijuana Act, but the court denied this motion. A lot of back-and-forth ensued afterwards, and the plaintiff’s legal team referred to the Philadelphia Fair Practice Ordinance and the Pennsylvania Human Relations Act (PHRA). The plaintiff claimed that the company failed to accommodate their disability and fired her as retaliation for requesting the accommodations.

The court found that the employee only had to show that they had requested an accommodation in good faith, even though it fell outside of the definition of a disability under the PHRA. The final decision on this case is still pending, but it shows how medical marijuana use and reasonable accommodation requests are valid issues.

Is Drug Testing Legal In Pennsylvania?

Pennsylvania employees do not have to tell their employers that they are medical marijuana users, but employers are not prohibited from asking. In most cases, they will not ask, but if they do, it is not advisable to be dishonest. Prospective employees who are applying for jobs with companies that are known to do drug testing might want to be up front and let them know. If the employee only uses the medical marijuana at home and does not think that the employer will conduct drug testing, it can remain a private matter.

Some states have laws that restrict or regulate employer rights to mandate drug testing, but Pennsylvania does not have any laws that address drug testing for private employers. Unless the testing violates legal provisions, like anti-discrimination laws, it is not prohibited.

Can I Use Medical Marijuana at Work?

Marijuana can affect one’s ability to perform their job duties, and it can also be dangerous. Pennsylvania does not require companies to make accommodations for the use of medical marijuana on the property. Therefore, employees who are under the influence of marijuana while working and exhibit conduct that falls below accepted standards of performance could face disciplinary action by their employer.

Employers have the right to forbid employees from using medical marijuana when they are on company property, in employer-provided vehicles, and on jobsites.  Employees who seem intoxicated at work and cannot perform their jobs can be confronted about their conditions.

What if My Employer Discriminated Against Me for Medical Marijuana Use?

Currently, companies are allowed to drug test their employees but cannot discriminate against them for being medical marijuana patients. Treating employees differently for this reason is illegal unless the employee is intoxicated at work. Employers have to be careful about their drug-testing policies and should not single out workers who are certified medical marijuana users.

Certified medical marijuana users in Pennsylvania who feel that their employers have discriminated against them may file a claim in the Court of Common Pleas.  Although there are no guarantees, these plaintiffs might be able to seek out similar damages that are award in discrimination claims, such as front pay, back pay, and some compensatory damages.

Philadelphia Employment Attorneys at The Gold Law Firm P.C. Protect the Rights of Discriminated Workers

In these changing times, employers are learning that it may be best to treat medical marijuana like any other prescription medication and not to discriminate against certified users. If you believe that your company has discriminated against you for medical marijuana use, do not hesitate to contact an experienced Philadelphia employment attorney at The Gold Law Firm P.C. Complete our online form or call us at 215-569-1999 for a free consultation. Located in Philadelphia and Pennsauken, New Jersey, we serve clients throughout South Jersey and southeastern Pennsylvania, including Wilkes-Barre, Scranton, northeast Philadelphia, Bucks County, Chester County, Delaware County, and Montgomery County.

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