Pubdate: Wed, 14 Mar 2018
Source: Philadelphia Daily News (PA)
Copyright: 2018 Philadelphia Newspapers Inc.
Author: Sam Wood


Pennsylvania's recently launched medical marijuana program may have
unintentionally created a minefield that employers and patients across
the state have only begun to navigate:

Patients who use marijuana could end up losing their jobs as a

At a fact-finding hearing in Philadelphia City Council on Wednesday, a
panel of lawyers, business interests, and medical professionals hashed
over the murkier employment issues stirred up by the law.

The upshot: Patients currently have few -- if any -- workplace
protections. And until a lawsuit is filed, it's unlikely that patients
will know how strong those protections might be.

The murkiness results from the difference between state and federal
law. Pennsylvania legalized medical marijuana in 2016, and last month
commercial dispensaries in the state began distributing the medicine.
However, under federal law, all forms of marijuana are considered
illegal Schedule 1 substances with a high potential for abuse and no
medical applications.

Pennsylvania law contains a provision that explicitly bars employers
from firing or otherwise discriminating against patients solely
because they're participating in the program. That provision is
untested. There are no court decisions in Pennsylvania that have
interpreted it.

Complicating matters, the City of Philadelphia -- and many private
businesses -- must comply with the federal Drug Free Workplace Act.

"And under the law you can fire [someone] if they fail a drug test,"
said Josh Horn, the co-chair of Fox Rothschild's Cannabis Law
practice, who testified at the hearing. "An employer has no obligation
to accommodate someone if they use cannabis during work hours."

But there's a sizable loophole, noted Pedro A. Rodriguez, director of
the city's Office of Human Resources.

"The [state law] does not require that employers conduct mandatory
drug tests," Rodriguez said.

Employers can institute zero-tolerance policies for workers in "safety
sensitive" positions. Those jobs would include any that require
driving, the use of machinery, or public safety, he said.

State law prohibits medical marijuana patients only from handling
certain chemicals, operating high-voltage electricity, and performing
duties at heights or in confined spaces, said Horn.

"A patient can't perform work that could be life-threatening," Horn
said in an interview.

The city's drug and alcohol policy prohibits all city employees from
possessing or using drugs or alcohol while on city property, Rodriguez
said. And official policy negotiated with three of the city's unions
- -- AFSCME, District Council 33, and District Council 47 -- requires
employees to disclose to the city if they are on any medication that
may alter their ability to operate machinery or motor vehicles.

"As you can see, balancing federal and state law with the medical
needs of our employees is not easy, but we welcome the opportunity to
be a part of this important conversation," Rodriguez said.

Traces of marijuana may remain in a patient's system for up to 30 days
and drug tests can't distinguish whether it was consumed during work
hours, said Samira Harris, a nurse at Albert Einstein Medical Center
and a member of the board of the Pennsylvania Association for Staff
Nurses and Allied Professionals.

"Medical professionals should never be at work while under the
influence of any prohibited substance," Harris said. "But what about a
medical professional who is also a patient, who only uses medical
marijuana during their off hours?"

Councilwoman Cherelle Parker, who said she backed the state's medical
marijuana program, said she had called the hearing as a way of
providing guidance to the city and business "because the law is vague."

"There are potential unintended consequences that the legislation
could have on employers and employees," Parker said. "It's important
that the private sector drive this. Now the work really begins."
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