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Pittsburgh ordinance prohibits discrimination on basis of medical marijuana use

10/10/24

By: Sunshine R. Fellows, Thomas R. Starks, and Chloe C. Zidian

The evolving landscape of marijuana legislation poses challenges to employers in developing uniform employment practices respective to employee’s rights under differing federal, state, and local laws. While Pennsylvania has allowed medical marijuana since 2016, Pittsburgh recently expanded protections afforded to medical marijuana patients.  

On September 24, 2024, Mayor Ed Gainey signed a City Counsel ordinance prohibiting discrimination against an individual’s status as a medical marijuana patient. 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” and is certified under Pennsylvania law to use marijuana for medical reasons. The ordinance therefore does not protect individuals who do not participate in the Pennsylvania Medical Marijuana Program. The ordinance became effective immediately upon signing.   

This Pittsburgh ordinance protects medical marijuana patients by targeting testing practices. The ordinance makes it unlawful for employers with five or more employees, employment agencies, and labor organizations to require applicants who hold valid Pennsylvania medical marijuana cards to participate in pre-employment drug tests for marijuana. It also limits employers’ right to require marijuana tests of employees who hold Pennsylvania medical marijuana cards during the course of employment absent suspicion of impairment. 

Exceptions to Protections 

This new law does have industry and duty-specific exceptions.  

1. Federal and State Transportation Regulations: Positions that are subject to drug testing due to regulations set forth by the U.S. or Pennsylvania Departments of Transportation are exempt from the newly enacted medical marijuana employment protections. This exception recognizes public safety implications associated with transportation-related jobs, where marijuana use could pose significant risks, while also providing deference to federal law that bans marijuana. 

2. Positions Requiring Firearm Carrying: Employees in roles that require the carrying of firearms are similarly excluded because of the potential dangers posed by individuals under the influence of marijuana in high-stakes environments, such as law enforcement or security. 

3. Collective Bargaining Agreements: Additionally, applicants who are subject to a valid collective bargaining agreement that specifically addresses pre-employment drug testing are excluded, allowing organizations that employ union employees to maintain their current practices, especially organizations like the United Steel Workers, American Federation of Teachers, and AFL-CIO locals to maintain their negotiated agreements in defining the terms of employment, including marijuana use policies. 

In addition to the above-described industry exceptions, in accordance with the Pennsylvania Medical Marijuana Act, the following exceptions also apply. 

1. Restrictions on Operation of Certain Equipment: Medical marijuana patients are prohibited from being in physical control of chemicals that require a state or federal government permit, high-voltage electricity, or any other public utility while under the influence of medical marijuana. This includes a specific blood content limit for active tetrahydrocannabinol. 

2. Employment Duties in High-Risk Situations: Medical marijuana patients are restricted from performing employment duties at heights, in confined spaces, or any tasks deemed life-threatening while under the influence of medical marijuana. Employers retain the authority to define what constitutes a life-threatening task.  

3. Public Health and Safety Concerns: Employers may also prohibit medical marijuana patients from performing any duty that could pose a public health or safety risk, even an activity as simple as driving a vehicle. Such prohibitions, even if they result in financial harm to the employee, do not constitute adverse employment actions under the law.  

Employer Rights and Responsibilities 

While employers are still permitted to take disciplinary action against employees under the influence of medical marijuana if their conduct does not meet the standard of care for their position, these steps must be taken with caution given expanding liability concerns. Furthermore, employers are not required to allow the use of medical marijuana on workplace premises. 

Additionally, employers retain the right to conduct drug testing under specific circumstances, including for-cause testing and testing following workplace accidents. For-cause drug testing can include testing for medical marijuana. It merely requires supervisors to have reasonable cause to suspect an employee of being under the influence of a drug while at work. Employers’ ability to drug test after workplace accidents are affirmed within the ordinance.  

The intersection of employment law and medical marijuana presents a complex landscape that strives to balance individual rights, employer responsibilities, and public safety considerations. As the legal standards continue to evolve, and federal, state, and local laws and regulations differ, ongoing dialogue and potential legislative revisions will be necessary. Employers should keep a close eye on developing laws and consider revisions to their drug testing policies.   

For more information and to discuss compliance with these new and complicated issues, employers should consult with their local, trusted Freeman Mathis & Gary attorney.