Medical marijuana.

In April 2016, Gov. Tom Wolf signed Pennsylvania's medical marijuana program into law, adding the commonwealth to a list of 24 U.S. states with similar statutes. Though this program represents a step in the fight for access to more extensive pain management therapies, it also causes confusion among employers that are now required to abide by this new law.

Issues Within the Construction Industry

Under Pennsylvania's new law, employers may continue to discipline employees who are under the influence in the workplace or when their conduct falls below the standard of care normally accepted for that position. An employer may prohibit employees who are prescribed medical marijuana from performing certain employment duties that the employer deems life-threatening or to be a public health or safety risk. This is especially pertinent to employees in the construction industry who often are required to operate heavy machinery, drive vehicles, work at heights, work with power tools or engage in other activities that would pose a significant safety threat if they were under the influence of drugs while working.

The medical marijuana program also prohibits discrimination and retaliation based on cardholder status, but does not require employers to accommodate marijuana use while an employee is at work. However, the “while at work” aspect of the law may be challenging to enforce. It is hard to determine whether someone is under the influence at work through drug testing, because it is difficult to distinguish between positive test results caused by utilizing marijuana in an approved form and whether an individual is currently under the influence.

To make the issue more complicated, even though medical marijuana is legal at the state level, it's still illegal under federal law. This discrepancy between state and federal law may be challenging for construction companies dealing with federal contracts. The medical marijuana law contemplates this discrepancy and provides that “nothing in this act shall require an employer to commit an act that would put the employer … in violation of federal law.” However, it stands to be seen how this will be interpreted in the employment context, such as where an employee working pursuant to a federal contract asks for an accommodation for medical marijuana use.

Case in Point

There is a lot of uncertainty surrounding this issue within employment law, and especially in the construction industry, that makes this statute challenging to follow.

Massachusetts, for instance, has a similar law in place governing medical marijuana use in the workplace. The Massachusetts Supreme Court recently ruled that a qualifying patient with Crohn's disease who was prescribed medical marijuana had a viable disability discrimination claim when she was terminated for testing positive for marijuana. The issue in the case was whether an employer may strictly enforce its drug-free workplace policy or whether an employer is obligated to consider making an exception to the policy as an accommodation under state anti-discrimination law. Massachusetts law states there should be no punishment under state law for qualifying patients and the medical use of marijuana.

Massachusetts' medical marijuana law makes clear that it does not require an accommodation of on-site use of marijuana in any place of employment. However, it implicitly recognizes that the off-site medical use of marijuana might be a permissible accommodation. The employer failed to explore whether the employee's off-site medical marijuana use was a reasonable accommodation before terminating the employee which, in the court's opinion, was enough to support a claim. The court noted that undue hardship might be shown where the employer can prove that the use of marijuana by an employee would violate an employer's contractual or statutory obligation and thereby jeopardize its ability to perform its business. For example, transportation employees who are governed by the Department of Transportation regulations may not be permitted any marijuana use.

The court noted that the fact that the employee's possession of medical marijuana is in violation of Federal law does not make it per se unreasonable as an accommodation in the workplace. To declare an accommodation for medical marijuana to be automatically unreasonable under federal law would not account for state law which permits marijuana for medical use. Being that nearly 90 percent of states allow limited use of marijuana for medical purposes, this opinion could represent the beginning of a significant shift in how employers will be required to deal with employees using marijuana to treat medical conditions.

What Should Construction Employers Do to Protect Themselves?

Though confusion still exists within the industry, there are a number of guidelines and best practices that construction companies can follow to ensure they do not run into any unnecessary discrimination disputes.

Construction firms must pay close attention to the parties to and language contained in their contracts to determine if the project involves the federal government or its agencies and, thereby, is regulated accordingly. In certain situations, contractors who are governed by federal law may not be required to accommodate drug use because it is prohibited under federal law. Support from in-house or outside legal counsel is advised in reviewing these types of contracts.

Next, the actual job duties performed by an employee in question should be evaluated. For instance, an administrative assistant working a desk job taking medical marijuana is different than a crane operator. If the duties performed by the employee might be significantly impacted by drug use and create safety issues, further clearance from a medical professional is advised. This may entail sending a copy of the employee's job description to his doctor to opine on whether the employee can safely perform the job duties while taking medical marijuana.

Finally, company policies may need to be updated in the event an employee has been cleared for medical marijuana use. Working with an attorney to draft an internal company policy on drug use and testing in the workplace that contemplates accommodating prescribed marijuana use under existing state regulation is the best way to guard against potential liabilities.

Conclusion

In summary, construction employers should be cautious when making adverse employment decisions based on an employee's valid medical marijuana use. Pennsylvania law specifically states that an individual cannot be terminated because of his status as a medical marijuana cardholder. Therefore, allowing the use of marijuana outside of the workplace will likely be deemed a reasonable accommodation for individuals with qualifying medical disabilities under state law.

Joshua Lorenz is partner at Pittsburgh-based Meyer, Unkovic & Scott. He focuses his practice on construction law and litigation. He can be reached at [email protected].

Elaina Smiley is a partner with the firm. She focuses her practice on employment discrimination claims, wage and hour claims, and matters involving breach of employment and noncompete agreements. She can be reached at [email protected].