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November 13, 2024
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In Pennsylvania, fall is in full swing, football season is hitting its stride and Thanksgiving is just around the corner.  What is on the menu for employers as the fall turns to winter?  Maybe some more restrictions on marijuana testing in the workplace?  Medical Marijuana is legal in PA and if you listen to the rumors, recreational marijuana may soon be on the menu.  Before we can even get to that course, Pittsburgh joined the party with an amended ordinance that employers should be aware of.  Will this new Ordinance be a sign of things to come or a one and done?

The City of Pittsburgh amended its Anti-Discrimination Ordinance to include protections for medical marijuana cardholders who work in or are applying to work in the city. The amended Ordinance restricts drug testing for applicants and employees who meet the Ordinance’s definition of a “medical marijuana patient.”  Here are some of the specifics:

What Does the Ordinance Do?

The Ordinance provides enhanced workplace protections for medical marijuana patients. City employers with five or more employees (including employment agencies and labor organizations) may not condition employment upon the passage of a pre-employment drug test for marijuana. The Ordinance also imposes restrictions on drug tests performed during employment; testing is permitted only under reasonable suspicion and after a workplace accident. For those entitled to protection, the employer may continue testing for other illegal drugs and controlled substances, only marijuana must be excluded from the testing panel.

Who is Protected?

Only those who meet the definition of a “medical marijuana patient” are protected by the Ordinance. The Ordinance defines “medical marijuana patient,” as someone who is certified under the Pennsylvania Medical Marijuana Act to access medical marijuana. There are no protections for applicants or employees who may be protected under another state’s medical marijuana program. If an Ohio resident, for example, chooses to work in the City of Pittsburgh, he or she would not be protected by the Ordinance. Likewise, any applicant or employee who holds a card in another state – and who has not yet become certified under Pennsylvania law – is not protected.

Are There any Exceptions?

There are a few limited exceptions to the testing restrictions. The Ordinance does not preempt the drug testing requirements of the state or federal department of transportation. Testing is also permitted if specifically allowed by a collective bargaining agreement and where the employee is required to carry a firearm as part of the job. However, there is no broad exception that allows testing for applicants and employees in other safety sensitive jobs.

Does the Ordinance Enhance Any Other Protections for Medical Marijuana Patients?

No. Employers in Pittsburgh may still discipline employees for being under the influence while at work. Employers may still prohibit employees from using medical marijuana on employer property and during work hours.  Pittsburgh employers may still restrict medical marijuana patients from performing certain safety sensitive jobs if the individual would be under the influence of marijuana while performing the job.

What Should a Pittsburgh Employer Do Now?

• Update your drug testing policies to comply with the Ordinance.
• Work with your drug testing vendors/facilities to create a process for identifying medical marijuana patients and ensuring they receive the appropriate testing in accordance with the Ordinance. Keep in mind that no questions regarding medical marijuana patient status may be made until after a conditional offer of employment has been made; such question is considered a medical inquiry.
• Train your managers and hiring personnel. Anyone involved in the hiring process must be educated on the new ordinance and the enhanced protections for medical marijuana patients.
• Refresh your reasonable suspicion/workplace impairment recognition program. With broad prohibitions on drug testing, and the general inability of a test to detect impairment from marijuana, a strong reasonable suspicion/impairment recognition program is critical. Managers and supervisors should be trained on the signs of impairment and how to objectively recognize and clearly document when someone is impaired. This is the key to keeping workplaces safe in the age of medical marijuana.
• Consult your counsel with questions.