Jessica Caggiano, Willig, Williams & Davidson

The prevalence of the so-called drug-free workplace in America is in juxtaposition with the ever-growing use of prescription drugs by employees. The result is that many of us work in drug-free workplaces, but we are not a drug-free workforce.

Yet, this seeming contradiction is in action every day, as employees appropriately utilize their prescriptions and perform their job duties without incident. When a conflict arises regarding an employee’s use of prescription drugs, employers and employees often struggle with an assortment of issues, the outcome of which is often based on the specific facts of that situation. For example, have performance issues caused the employer to question the employee’s drug use? If so, was the employee using a prescription drug appropriately? Can drug test results even tell you whether a person is under the influence for purposes of that medication, such that the employee’s work might be impacted? Was the issue of prescription drug use revealed in a random drug test? Does the employee’s job require him or her to perform duties that make prescription drug use a safety concern?

Employees who have been penalized or suffered job loss for prescription drug use are not expressly protected from such action by any specific Pennsylvania law. Since Pennsylvania is an at-will employment state, an employee with no recourse through a collective bargaining agreement or other private employment agreement has limited options in challenging the adverse employment action. An employee might link their prescription drug use to disability discrimination or a failure to accommodate a disability pursuant to state or federal anti-discrimination laws such as the Americans with Disabilities Act (ADA) or the Pennsylvania Human Relations Act (PHRA). Additionally, such an employee might allege that drug testing for prescription drug use, for example, constitutes an unlawful medical examination or disability inquiry under the ADA. For example, in Rowles v. Automated Production Systems, the court granted the plaintiff’s motion for summary judgment, in part, finding that the employer’s drug-testing policy was unlawful under the ADA. The court also denied the defendant’s motion for summary judgment on all remaining claims, including the plaintiff’s ADA discrimination claim challenging his termination.

In a workforce with such a high rate of prescription drug use, employees might reasonably term their legal options inadequate under such circumstances.

Sorting through prescription drug issues in the workplace becomes even more complicated when the prescription at issue is for medical marijuana. Pennsylvania enacted the Medical Marijuana Act (MMA) in 2016. Like many of the drugs listed in Pennsylvania’s own controlled substances law, medical marijuana may now be lawfully taken if, among many stipulations, a person who wishes to use medical marijuana obtains certification to do so from the commonwealth.

Unlike, for example, a prescribed narcotic, Pennsylvania law specifically provides employment related protection for persons certified to use medical marijuana. The MMA expressly prohibits employers from discharging, threatening, refusing to hire, or otherwise discriminating or retaliating “against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.”

At first blush, it might seem as though medical marijuana certification holders have more legal protection in their employment than the typical prescription drug holder. However, a closer look at the MMA dispels the illusion of sound protection for medical marijuana users.

First, no court has yet interpreted the anti-discrimination and retaliation provision in the MMA, the language of which only applies to actions taken “solely on the basis of such employee’s status” as a certified medical marijuana user. Second, the MMA makes clear that its employment-related protections do not impact an employer’s right to discipline an employee for being under the influence of medical marijuana in the workplace or for “working while under the influence of marijuana when the employee’s conduct falls below the standard of care normally accepted for that position.” The MMA also does not oblige an employer to accommodate an employee by allowing them to use medical marijuana on its property or “commit any act that would put the employer or any person acting on its behalf in violation of federal law.” In Section 510, the MMA also expressly prohibits any patient, including employees, with a specified blood content of tetrahydrocannabis from being in control of chemicals in certain circumstances, high-voltage electricity, or other public utility. The MMA further prohibits such persons from performing duties “at heights or in confined spaces,” such as mining, and allows employers to further prohibit such persons from any setting that might be life-threatening to the employee or a co-worker or otherwise result in a risk to public health or safety. The MMA’s anti-discrimination and retaliation provision would also not protect a person, per Section 1309, “undertaking any task under the influence of medical marijuana when doing so would constitute negligence, professional malpractice or professional misconduct.

The Pennsylvania courts have not yet weighed in on this aspect of the MMA. In other states where medical marijuana use is lawful, courts have been reluctant to allow cases to proceed against employers where federal preemption issues are raised and in the absence of express, statutory anti-discrimination protections. In Cotto v. Ardagh Glass Packing, Inc., the plaintiff was indefinitely suspended for refusing to take a drug test after he hit his head on a fork lift. He told his employer he could not pass a post-incident drug test because he took prescription drugs, including medical marijuana. The court dismissed the disability discrimination and retaliation claims, as well as the plaintiff’s reasonable accommodation claim that the employer waive the drug test. The court found that neither New Jersey’s laws permitting the use of medical marijuana, nor its laws prohibiting disability discrimination, required a private employer to waive a drug test for a medical marijuana user.

However, in Noffsinger v. SSC Niantic Operating, the court rejected the employer’s argument that federal law—namely the Controlled Substances Act—pre-empted the plaintiff’s claim of adverse treatment under the state’s marijuana law which, like Pennsylvania’s MMA, prohibited employers from taking adverse employment actions or refusing to hire for the medical use of marijuana. The court noted: “Although most cases dealing with the Controlled Substance Act’s preemption of state medical marijuana statutes have come out in favor of employers, these cases have not concerned statutes with specific anti-discrimination provisions …”

Beyond the terms of the MMA itself, use of marijuana, whether for medical purposes or otherwise, is still illegal under federal law pursuant to the Controlled Substances Act. (“Despite the commonwealth of Pennsylvania’s enactment of its medical marijuana law, the distribution of marijuana remains illegal under federal law.”).

The federal government’s unwillingness to recognize any lawful, medical use of marijuana has vast implications for medical marijuana certification holders in Pennsylvania. Many employers in Pennsylvania are, for example, federally required to conduct random drug tests for certain safety-sensitive positions pursuant to the Department of Transportation (DOT)’s regulations. Marijuana is one of the drugs for which employees are subject to drug testing. DOT regulations make clear that the employer has the discretion to take an adverse employment action against a person failing such a drug test

Further, unlike other prescription drug holders, medical marijuana users also cannot turn to the ADA for protection. Since it is a federal law, most courts have interpreted the ADA not to protect medical marijuana users in any respect, since marijuana use is illegal under federal law.

Thus, unlike Pennsylvanians with medical marijuana certifications, Pennsylvanians with other controlled substance prescriptions may have greater legal protection because of their ability to potentially invoke the protections of federal law. In contrast, the strength of employment-related protections for medical marijuana certification holders under the MMA is unclear.

Collective bargaining agreements with just cause provisions may provide the best, most common sense protection from unjust, adverse employment decisions for prescription drug use. In addition, unions can negotiate protections for employees related to employee drug-testing procedures.

For the at-will employee with a medical marijuana certification, Pennsylvania could certainly do better. Although it cannot change the federal government’s classification of marijuana, Pennsylvania’s anti-discrimination and retaliation provisions for such employees could be stronger. There are also more subtle ways that Pennsylvania could protect the rights of medical marijuana prescription holders in the commonwealth. For example, Pennsylvania could limit when employers may drug test for marijuana. Pennsylvania could also prohibit adverse employment actions for positive drug tests for marijuana where a person produces their certification and is otherwise abiding by their prescription.

Jessica C. Caggiano is an attorney at Willig, Williams & Davidson. She focuses her practice on labor and employment law on behalf of individuals, advocating for union and worker rights. She has represented working people in labor arbitrations, state court litigation, federal court litigation and before governmental agencies.