On September 24, the Pittsburgh City Council passed Ordinance 2024-0705 which makes medical marijuana patients a protected class under the city’s discrimination law. The Ordinance took effect the same day. Impacted employers – those with 5 or more employees – are encouraged to review the law and make necessary changes to their drug testing program.
Discrimination Protections for Medical Marijuana Users
Under the Ordinance, medical marijuana patients are protected from discrimination in employment the same way as other protected classes such as race, age, religion (and others). “Medical marijuana patient” is defined as “an individual who has a serious medical condition, disability or handicap such that qualifies them for medical marijuana use and who is certified under the Pennsylvania Medical Marijuana Act of 2016 to access marijuana for a certified medical use.”
The law protects both job applicants and current employees who are medical marijuana patients. Employers are prohibited from discriminating in hiring or employment because of the individual’s lawful status as a medical marijuana patient, including by requiring pre-employment testing for marijuana and conducting any such testing during the course of employment. This poses a dilemma for employers as to how—and when—to inquire into an individual’s status as a medical marijuana user if they test for marijuana in pre-hire and/or post-hire scenarios.
Exceptions
There are a number of exceptions under the Ordinance that employers are encouraged to review in full with their qualified legal counsel. Notably, the Ordinance does not apply to any position that is subject to drug testing under the US Department of Transportation or Pennsylvania Department of Transportation regulations. The Ordinance also does not require an employer to commit any act that would cause it to violate state or federal law.
The Ordinance also cites the Pennsylvania Medical Marijuana Act which prohibits medical marijuana patients from performing certain tasks and duties such as (but not limited to) any tasks any employer may deem life-threatening if performed while under the influence of medical marijuana.
Permissible Employer Actions
The Ordinance allows employers to take disciplinary action against an employee if the employee is under the influence of medical marijuana in the workplace or is working while under the influence of medical marijuana, where the employee’s conduct falls below the standard of care normally accepted for that position. Employers are not required to allow the use of medical marijuana on the premises or property of the workplace.
Employers are still able to test for the illegal use of controlled substances. Further, the Ordinance does not apply to: (i) for cause testing when supervisors have reasonable cause to suspect an employee of being under the influence at work, or (ii) post-accident testing.