A matter of balance: Medical marijuana, the ADA and drug testing

Drug and alcohol testing at work have been commonplace for years, and for good reason. Employers want to ensure they host a safe and productive work environment. The use of alcohol and drugs poses a threat to the health and safety of employees and the security of facilities and equipment.

Since Pennsylvania does not have a specific statute setting out what employers can and cannot do, case law has developed to guide drug testing practices. In Pennsylvania, case law says employers should balance an employee’s privacy interests against the need for random drug testing.

Balancing privacy interests

The public’s interest in ensuring that workers in safety-sensitive positions are drug-free may outweigh any individual right to privacy.

For example, in 1992, the 3rd Circuit Court of Appeals found that terminating an employee for refusing to consent to a drug test may violate Pennsylvania’s public policy against tortious invasion of privacy. It ruled an employer must balance “the employee’s privacy interest against the employer’s interest in maintaining a drug-free workplace in order to determine whether a reasonable person would find the employer’s program highly offensive.” (Borse v. Piece Goods Shop, Inc., 3rd Cir., 1992)

What about the ADA?

The ADA does not prohibit drug and alcohol testing, and employers are permitted to implement policies and procedures to ensure that employees and applicants are not actively engaged in illegal drug use. (The ADA does not protect active drug users.)

However, medical marijuana users who have been subject to drug and alcohol testing have brought suits alleging violations of their rights under the ADA, as well as state law equivalents. In some cases, courts have agreed.

Interactive process required

Most recently, in Barbuto v. Advantage Sales & Marketing, LLC (477 Mass. 456, 2017), the Massachusetts Supreme Court decided that an employer is required to engage in the interactive process regarding potential accommodations and may be required to reasonably accommodate the medical use of marijuana outside of the workplace.

In Barbuto, the plaintiff accepted a job offer. When she was informed she would have to take a drug test, she told her supervisor that she would test positive for marijuana because she suffered from Crohn’s disease and was a qualifying medical marijuana patient under Massachusetts law. She noted that she did not use marijuana daily and would not consume it before or at work. The supervisor confirmed that her marijuana use would not be an issue.

Shortly after, the employee tested positive for marijuana. HR terminated her, saying it did not matter that she used marijuana to treat a medical condition since the company followed federal law, not state law.

The employee brought suit alleging, among other things, violation of the Massachusetts handicap discrimination law. She won.

Pennsylvania rules

In Pennsylvania, the medical marijuana law prohibits employers from discriminating against employees because of their medical marijuana status.

According to Pennsylvania law, however, employers are not required to “make any accommodation of the use of medical marijuana on the property or premises of any place of employment.” You may discipline employees 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.”

The law is silent on the implications if an employee who uses medical marijuana tests positive.

Advice for employers

Employers should not have a per se rule prohibiting employment when an employee tests positive for marijuana. If an employee tests positive for marijuana and informs you about legal medical marijuana use, engage in the interactive process to determine whether you can waive your drug testing policy without causing an undue hardship.

Waiving that policy does not mean you must allow the employee to work under the influence or use medical marijuana while working.

But testing positive for medical marijuana should not by itself disqualify an applicant or be automatic grounds for termination. Consider the type of work the employee does and whether there is a safety risk. The higher the safety risk, the less likely you will be required to accommodate the employee’s medical marijuana use.

Positive test vs. impairment

Remember, just because an employee who uses medical marijuana tests positive does not mean he or she is under the influence. Marijuana’s active chemical ingredient, THC, can stay in a user’s system for days or weeks, long after the effects of marijuana have subsided. This makes it difficult to determine whether an employee is actually under the influence at the time of the test.

If faced with this complicated issue, consult your attorney before making any disciplinary decisions.

Kali Wellington-James is an associate in the Labor and Employment Practice Group of Pepper Hamilton, working in the firm’s Berwyn, Pa. office.