Uncharted Territory of Medical Marijuana and Employment Law in Pennsylvania Demonstrated by Police Officer’s Administrative Leave

October 18, 2019

The Pittsburgh Post-Gazette recently reported that the city confirmed a Pittsburgh police officer with a medical marijuana card was placed on administrative leave after testing positive for marijuana. This situation highlights the developing nature of the law surrounding medical marijuana and employment in Pennsylvania.

The Pennsylvania Medical Marijuana Act prohibits an employer from discriminating or retaliating against an employee solely on the basis of the employee’s status as someone who is certified to use medical marijuana. The Act does not, however, require an employer to accommodate medical marijuana use in the workplace. It also does not 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 when the employee’s conduct falls below the standard of care normally accepted for his or her position.

In addition, an employer can prohibit an employee from performing any duty which could result in a public health or safety risk while under the influence of medical marijuana. Particularly relevant to this situation, the Act also does not require an employer to do anything that would put the employer in violation of Federal law.

According to the Post-Gazette, police bureau policy, as well as the Municipal Police Officers’ Education and Training Commission, which sets statewide standards for police officers, prohibit officers from using marijuana. The article notes that the Commission’s prohibition is based largely on federal law prohibiting possession of a firearm by a marijuana user. Presumably, the Commission is relying on a provision in federal firearms law that forbids any person who is an “unlawful user of or addicted to” any controlled substance from possessing firearms or ammunition. The argument here is as follows: since marijuana is still illegal under federal law, anyone who uses it is an “unlawful user” and therefore prohibited from possessing a firearm – something that is required for police officers. In other words, it appears that the officer’s placement on leave may not violate the Pennsylvania Medical Marijuana Act because, under federal law, he cannot lawfully possess a gun as a user of marijuana. Allowing him to do so would place the Pittsburgh Bureau of Police in violation of Federal law, and the Act does not require this.

It remains to be seen how this specific situation plays out. There are at least three takeaways here, however:

  • The Pennsylvania Medical Marijuana Act prohibits employer discrimination against employees certified to use medical marijuana.
  • There are exceptions to this prohibition. One of these is when permitting the medical marijuana use by the employee would put the employer (or anyone acting on its behalf) in violation of Federal law.

This is a developing area of the law in Pennsylvania and nationwide. When faced with an employment-related medical marijuana situation, involvement of legal counsel (on the front end) can be key.

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