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Last Word: What a Tangled Workplace Web We Weave With Medical Marijuana

The workplace is a very complicated place, and new laws and regulations get dumped on managers and business owners all the time.

This is especially true of states where medical marijuana is legal, because medical cannabis users run smack into a problem: what may be legal in your state, and used to treat a legitimate medical condition, can still get you fired because your state regulations are in conflict with Federal law.

Here’s the latest state in question: Pennsylvania.

A recent article by Eric Meyer, an attorney who specializes in workplace law at the Philadelphia law firm Dilworth Paxson, on the HR and talent management website TLNT pointed out some contradictions in Pennsylvania’s new medical marijuana law. The new law signed by Gov. Tom Wolf says:

“No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate 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.

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.

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.”

As Attorney Meyer notes, “I’m getting some mixed signals here.”

Yes, this is the problem for workers in places where they can legally use medical marijuana. No matter what they states says is OK, many companies feel obliged to follow the rules of a higher authority — the U.S. Government and it’s classification of cannabis as a Schedule I drug.

So, what’s a worker — and their employer — supposed to do? I’m guessing this is a pretty hot topic right now in Pennsylvania.

Here’s Attorney Meyer’s advice, and I think it’s pretty good for anyone in any of the medical marijuana states. He lists these four points in his article under “What Should Employers Do?” —

  1. If you operate in an industry where the law forbids you from employing people with Schedule 1 drugs in their system, then, this new law doesn’t change that. Continue doing what you’re doing.
  2. Other employers should educate their workforce about the new law, once it takes effect.
  3. An employee taking medical marijuana will have an underlying ADA disability. So, encourage medical marijuana users to initiate an interactive dialogue to discuss workplace accommodations for the underlying disability.
  4. I recognize that the Americans with Disabilities Act does not protect illegal drug use. But, the ADA carves out the “use of a drug taken under supervision by a licensed health care professional.” While some courts have taken a hard-line against accommodation of medical marijuana, the law is still developing. So, consider treating medical marijuana as you would other prescription drugs, and refer back to Tip No. 3 above.

This is great advice — for now. The fact is, the legitimate use of medical marijuana by employees for medical conditions and as prescribed by a physician is complicated because so many different laws are at odds on this at both the state and federal level.

So, caveat emptor. Be aware that there are big risks here for both employers and employees. The ultimate answer is the one the Cannabis Industry has the least control over — the inability of the federal government to get off its keister and fix this growing, maddening problem.

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