As states across the country take up the issue of legalizing medical and recreational marijuana, a gray area remains where state and federal laws overlap and seem to contradict each other. Many Pennsylvania employers are questioning how to navigate the unique human resources concerns when the state approves medical marijuana use, but the federal government bans it.
Recently, MacMain Leinhauser partner, Matthew J. Connell, offered his insight into the conundrum many state employers currently face regarding medical marijuana. Speaking before the Berks County chapter of the Society of Human Resource Management, Connell acknowledged the gaps and discrepancies in current marijuana laws.
Calling cannabis law in Pennsylvania, “new and untested by the courts,” Connell feels employers are left to figure it out as they go. He believes creating and enforcing a solid marijuana policy is essential for employers to protect their interests and prevent costly, time-consuming legal claims.
The following are some of the key issues surrounding medical marijuana in the workplace:
Like race, religion, and sex, medical marijuana use is protected by workplace discrimination laws. Workers who disclose their use of cannabis for any of the 21 state-approved conditions cannot be adversely affected in terms of hiring, promotions, or termination. Where marijuana use was once grounds for termination, legal use for medical purposes is now protected under the law – provided it is not smoked.
While medical marijuana use is permitted under Pennsylvania law, there are obvious pressing safety concerns regarding impaired workers performing certain jobs. The part of the law addressing when employers can prohibit workers from doing more risky jobs like mining or working with high-voltage equipment is not clear enough to be easily enforced, leaving these guidelines open to employer interpretation.
The law allows employers to prohibit workers with a blood content of more than 10 nanograms of active THC per milliliters of blood in serum from doing these high-risk jobs. This is a primary area of confusion in the law. Employers are not equipped to gauge what that amount is, let alone accurately test workers to make that determination. Testing is essentially useless because while THC can be detected in the blood, there is no way to determine if it is from legal or illegal use.
Beyond these key pressing issues, there is one larger overall problem with the nebulous cannabis law in Pennsylvania. What does it mean to be under the influence? Until THC testing is perfected, Attorney Connell recommends companies clarify and define observable, physical behaviors and incorporate that definition into their corporate policy. Workers who are obviously stumbling, slurring their speech, or behaving out of character may be under the influence and too impaired to do their job safely.
Pennsylvania employment law attorneys at MacMain Leinhauser help human resources professionals consider every aspect of the law when creating their cannabis policy. To discuss your employment law matter with a skilled and knowledgeable attorney, call 484-318-7106 or complete an online inquiry today. Located in West Chester, we represent clients throughout Chester County and all of Pennsylvania.