MMA and the Employment Relationship

No, we are not talking about what is commonly known as Mixed Martial Arts or the MMA. Sometimes, though, laws seem so detached from the real world that it seems like employers and employees are left with no choice but to battle it out in the arena or what is commonly known as the octagon!

We are talking about the Medical Marijuana Act (MMA) and its application in the work “octagon”. The MMA was enacted in 2016 but like many laws, it takes years to determine how they actually apply in the real world. It is a comprehensive Act that allows for and regulates the use of medical marijuana in Pennsylvania.

While there remain numerous questions as to its applicability under different circumstances, we do know how the courts have interpreted the Act under some specific circumstances.

First, the Act does provide a private right to sue an employer who violates it. The Act specifically notes that no employer may discharge, threaten, refuse to hire or otherwise discriminate against an employee on the basis of such employee’s status as a certified user of medical marijuana. If you do, the employee may sue. The enactment of the MMA reflects a public policy designed to protect certified users of medical marijuana from employment discrimination and termination. Scranton Quincy Clinic Co. v. Palmiter, 2021 Pa. Super. 155 (2021).

Second, medical marijuana is viewed as a prescription drug. An employer may not terminate an employee solely on the basis of a positive drug test. Quincy, Id. Bare results do not disclose how recently the employee may have ingested marijuana before reporting to work or if the employee’s work performance was somehow impaired. As a side note, the type of test may be determinative as the results of a blood test are different than the results of a urine test. As well, the level of a marijuana metabolite may be important. The essential inquiry concerns the relationship of the test result to an employee’s impairment, if at all. If under the influence or impaired, the employer has every right to take appropriate action.

Third, the MMA legalizes the possession and use of marijuana in limited circumstances. Compliance with the MMA does not constitute a crime. Commonwealth v. Barr, II, J-70-2021 (Pa. 12-29-21). However, this does not give employees carte blanche to use marijuana outside the parameters required by the MMA and does not require employers to summarily allow the use under any circumstance. Further, a comprehensive policy on the use of medical marijuana my go a long way toward protecting the rights of both parties. For a very good guide for employers and employees, check out “Act 16: Guide for Employers and Employees” at mpp.org/states/Pennsylvania/act-16-employment-provisions/.

Of course, if you have any questions regarding the use of medical marijuana in the workplace, please call us.