Pennsylvania s Medical Marijuana Act and the Creation of a New Protected Class of Employees Presented by: Joshua Schwartz Agenda The Medical Marijuana Act Implementation and Basic Requirements Employment Specific Provisions and the Impact on the Workplace Practical Considerations for Employers 1
Medical Marijuana: Adventures in High ring Presented by: Joshua Schwartz Medical Marijuana: A Trip that won t Necessarily Lead to a Work Related Injury Presented by: Joshua Schwartz 2
Medical Marijuana: The New Joint Employer Relationship Presented by: Joshua Schwartz Medical Marijuana: Conflicting Legal Authority Ganja Down? Presented by: Joshua Schwartz 3
Medical Marijuana: Cannabis iness Still Fire Employees for Taking Drugs? Presented by: Joshua Schwartz Small Group Discussion Mary Jane works as an order fulfillment specialist at a local distribution center. Mary has a reputation for being high strung, but has recently started exhibiting a calmer demeanor at work. Co workers notice the change, and also notice that Mary is now taking a pill during lunch in the employee breakroom. When asked by a nosy co worker, Mary states that she is taking medical marijuana. The coworker reports Mary to human resources. What do you do? 4
Medical Marijuana Act General Overview: Act 16 of 2016. Effective 5/17/16. Permits medicinal use of marijuana for persons with certain medical conditions. Usage requires identification card from the PA Department of Health. No certifications issued yet. Full implementation not likely until 2018. Implementation of the Act DOH published FAQs specific to Patients and Caregivers, Growers and Processors, Dispensaries, Physicians. Established Medical Marijuana regions. Issued temporary guidelines establishing a safe harbor for use by minors. Released permit applications for growers and processors. Seeking guidance from health care providers. 5
FYI: Safe Harbor Program Provides parents, legal guardian, caregivers and spouses of minors with a Safe Harbor Letter, indicating that they can obtain and administer medical marijuana to minors within PA. Marijuana legally obtained out of state. Only in forms permitted by the Act. Expires May 17, 2018. Why does this matter? 6
Requirements of the Act May only be dispensed to: patients who receive a certification from a practitioner and who are in possession of a valid ID card; or caregivers with a valid ID card. May only be dispensed in certain forms. Can not be dry leaf of plant. Can t be a caregiver for more than five patients (that would make you a dealer ). A patient may have up to two caregivers. Unused marijuana must stay in the original packaging. Must have ID card on person when in possession of marijuana. Product must be packaged / labeled correctly. Who can Obtain Medical Marijuana? Generally, Pennsylvania residents with a serious medical condition or their caregivers. Serious Medical Condition Cancer; positive status for HIV or AIDS; amyotrophic lateral sclerosis; Parkinson s disease; multiple sclerosis; certain damage to the nervous tissue of the spinal cord; epilepsy; inflammatory bowel disease; neuropathies; Huntington s disease; Crohn s disease; PTSD; intractable seizures; glaucoma; sickle cell anemia; certain types of severe pain; autism. 7
Types of Legal Marijuana Specifically Limited: Pill. Oil. Topical forms, including gels, creams or ointments. Aform medically appropriate for administration by vaporization or nebulization. Tincture. Liquid. All other forms are prohibited. Process & Limitations What is the process to obtain medical marijuana? Register with DOH. Individual visits Physician registered with program. Confirmed as having a serious medical condition. Apply to DOH for ID card; pay fee. Obtain marijuana at a dispensary consistent with Physician s orders. This process is still under development. Not clear how long it might take. What does the Act not permit? Recreational use; use by anyone without an ID card; use of certain forms of marijuana 8
Employment Provision of the Act 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. Employment Provision of the Act Does this operate to create a new protected class of individuals under PA law? Who is included within that class? Who is not included? What is the legal significance, if any, of an Employer becoming aware that an Employee is a certified user under the Act? 9
Employment Provision of the Act 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. Employment Provision of the Act Not required to make accommodations, but what if an Employer chooses to? Risks? Implementation? Where is the line between an accommodation for marijuana use and other reasonable accommodations for the underlying serious medical condition? How can Employers assess under the influence? 10
Employment Provision of the Act Employment prohibitions while under the influence: Operate or be in physical control of chemicals which require a permit, high voltage electricity, or other public utilities. Blood content no more than 10 nanograms of active tetrahydrocannabis. Perform duties at heights or in confined spaces, including mining. Perform any life threatening task. Perform any duty which could result in a public health or safety risk. Issues with defining these limits. Employment Provision of the Act 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. 11
Employment Provision of the Act Federal law vs. State law. DOH takes a hands off approach. FAQs confirm that the Act does not protect against Federal enforcement. Marijuana still an illegal controlled substance under Federal law. Recent change in Federal enforcement? Overlap with accommodations under Federal statutes. Employers with significant Federal contracts? Practical Considerations Reasonable Accommodations. Serious medical conditions under the Act how would we treat them under Federal law if we were aware? Required reasonable accommodations under Federal and State law? Even if the Act says these are not required? Serious medical condition under the ADAAA and the PHRA. Can an employer just say no? 12
Practical Considerations Handbooks & Policies. Zero Tolerance prohibition. Not solely on the basis of a certified user. Can / Should an employer require that the employee provide notification that they are using marijuana at work? Assessing safety sensitive positions. Establishing reasonable classifications. Placing restrictions on certain positions or duties. Defining terms / issues related to medical marijuana. Possession on work premises. Issues with client / customer concerns and perceptions. Testing for under the influence. Practical Considerations Work Related Injuries. Greater risk of injury? Responding to and investigating injuries. Could employer permitted use of medical marijuana impact workers compensation, general liability and other important insurance coverages? 13
Practical Considerations Employee Performance. Productivity. Performance evaluations. Ability to perform essential job functions. Fitness for duty evaluations. Practical Considerations Necessary training. Human resources personnel. Supervisors. 14
Questions Joshua Schwartz 717.399.1535 jschwartz@barley.com Looking forward to toke ing more about it 15