The Pennsylvania Medical Marijuana Act (Act) prohibits employment discrimination against employees who use medical marijuana. When the Act was passed, the legislature included a safety exception within Sections 510(3) & (4) of the Act, stating that employers may prohibit employees from performing any task or duty which:

• the employer deems life-threatening, to either the employee or any of the employees of the employer, while under the influence of medical marijuana; or
• could result in a public health or safety risk while under the influence of medical marijuana.

However, the term "under the influence" was not formally defined in relation to these provisions.

In the case of Clark v. J.R.K. Enterprises, Inc., the plaintiff was a roadside flagger. The plaintiff disclosed his nightly use of medical marijuana to his employer after several co-workers were selected at random for drug tests. Considered a safety sensitive position, the employer determined that the plaintiff could only continue his position as a flagger if he agreed to cease using medical marijuana. In response to this determination, the plaintiff filed suit, alleging that the employer's decision was in violation of the Act.

Moving for dismissal, the employer argues that by the plaintiff's own admission, the plaintiff would consistently be under the influence of marijuana as the result of his continual use and, as such, should not be performing safety sensitive duties. Relying on the decisions in Commonwealth v. Dabney (Pa. Super. 2022) and Commonwealth v. Haney (Pa. Super. 2022), Judge Wright dismissed the suit. The judge contended that the lawful use of medical marijuana cannot include permitting employees to direct drivers through construction zones as a matter of general safety. Ultimately, it was the finding of the court that "to construe 'under the influence' to mean anything other than having any amount of marijuana in a Patient-Employee's system would be altogether untenable" as related to the Act's safety exception.

Employers are encouraged to review jurisdictional law regarding the legal recreational and medicinal use of marijuana as well as internal policies associated with safety sensitive positions and drug testing.

Posted: March 22, 2023

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