Pittsburgh Bans Tests for Many Prospective and Current Employees Who Use Medical Marijuana

On Sept. 24, the Pittsburgh City Council passed a new ordinance prohibiting employment discrimination against an individual’s status as a medical marijuana patient. Mayor Ed Gainey signed the ordinance the same day, making it effective immediately.

The new ordinance makes it an unlawful employment practice for employment agencies, labor organizations, and employers with five or more employees to require applicants who hold valid Pennsylvania medical marijuana cards to participate in a pre-employment drug test for marijuana. It also limits employers’ right to require marijuana tests of employees who hold Pennsylvania medical marijuana cards during the course of their employment, absent suspicion of impairment.

The ordinance identifies a medical marijuana patient as “[a]n individual who has a serious medical condition, disability, or handicap such that qualifies them for medical marijuana use.” Such an individual is also certified under Pennsylvania law to use marijuana for medical reasons. Therefore, the terms of the ordinance would not protect individuals who do not participate in the Pennsylvania Medical Marijuana Program.

The new Pittsburgh ordinance is unlike statutes in other jurisdictions that provide employment protections to workers who participate in state medical marijuana programs because it targets employer-mandated drug tests instead of limiting employers from taking adverse action on the basis of an individual’s state-sanctioned marijuana use. In New Jersey, for example, employers are not prohibited from testing applicants or employees for marijuana (as otherwise permitted by state law), but they are limited in their ability to take adverse action against an individual who tests positive. Protections for medical marijuana users exist as a matter of Pennsylvania law, but that statute does not limit who can be tested; it only potentially limits what an employer can do when it learns of a positive marijuana test.

The new Pittsburgh ordinance’s focus on whether an employer can test in the first place poses a challenge for employers, who typically will not know that an individual holds a medical marijuana card unless an employee volunteers that information. The timing of such a communication will be particularly problematic for prehire testing, considering that employers typically do not know and generally cannot ask about an individual’s medical condition prior to making a conditional offer of employment.  

The new law does include industry- and position-specific exceptions, as well as safety-related exceptions, to the otherwise blanket prohibition on marijuana testing of Pennsylvania Medical Marijuana Program participants. For example, the prohibition does not apply to any individuals working in positions subject to drug testing due to regulations issued by the U.S. Department of Transportation (which would pre-empt state and local law in any event) or the Pennsylvania Department of Transportation, any individuals working in positions that require them to carry a firearm, or any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of applicants. However, the ordinance has comparatively few exceptions relative to the state Medical Marijuana Act.

Consistent with Pennsylvania’s Medical Marijuana Act, employers may take action against medical marijuana patients under the influence of medical marijuana, which is considered established if a test shows more than 10 nanograms of active tetrahydrocannabinol per milliliter in their blood. State law permits an employer to prohibit workers who use medical marijuana from, 1) operating or being in control of chemicals requiring permits issued by the government, or 2) operating or being in control of high-voltage electricity or public utilities.

In addition, medical marijuana patients who are under the influence of medical marijuana may not, 1) perform any employment duties at heights or in confined spaces, 2) perform tasks deemed by the employer to be life-threatening to the employee or to other employees of the employer, or 3) perform any duty that could result in a public health or safety risk while under the influence of medical marijuana.

Since this section of the ordinance refers to state law, it is likely that these exceptions will be interpreted consistent with the state provisions. That said, although a few Pennsylvania courts have issued decisions applying the Pennsylvania Medical Marijuana Act’s provisions, the scope of the state’s exemptions are in many ways still open to interpretation. For example, state courts that have reviewed the issue have concluded that the Pennsylvania Human Relations Act does not require employers to accommodate a disabled employee’s medical marijuana use.  

Pittsburgh’s new ordinance does specifically allow employers to continue to do the following:

• Take disciplinary action against medical marijuana patients if an employee is under the influence of medical marijuana in the workplace or is working while under the influence of medical marijuana, when the employee’s conduct falls below the standard of care normally accepted for their position.
• Prohibit the use of medical marijuana on its property or in the workplace.
• Test medical marijuana patients for illegal use of controlled substances.
• Conduct for-cause drug testing if there is reasonable cause to suspect an employee is under the influence of a drug at work.
• Perform drug tests after a workplace accident.

In light of this new ordinance, employers that hire or employ workers in Pittsburgh may want to evaluate their prehire drug testing program and ensure: 1) they have a process for identifying workers who participate in the Pennsylvania Medical Marijuana program after conditional offers of employment are made; and 2) they identify which positions, if any, they believe would be excepted from the prehire testing ban, either for safety reasons or because of an existing collective bargaining agreement.

Once hired, all workers can be subject to for-cause marijuana testing, but suspicionless tests should be limited for those individuals who participate in the Pennsylvania Medical Marijuana Program unless they are assigned work that fits into one of the ordinance’s exceptions.

Taylor N. Brailey is an attorney with Littler in Pittsburgh. Nancy N. Delogu is an attorney with Littler in Washington, D.C. © 2024 Littler. All rights reserved. Reposted with permission.