Pittsburgh employers should prepare for new workplace protections for medical marijuana patients with a new anti-discrimination ordinance that will likely become law. The new rule will prohibit employers from discriminating against employees or job applicants based on an individual's status as a medical marijuana certification cardholder, including by requiring drug testing as a condition of employment. We explain everything you need to know and share four steps you can take to prepare for the rule's take effect.
what happened?
The Pittsburgh City Council unanimously passed an ordinance on Tuesday aimed at protecting medical marijuana patients from discrimination in the workplace. The ordinance, which is expected to be signed into law by Mayor Ed Gainey, addresses a gray area in the law after the state legalized medical marijuana use but did not blanket ban employers from requiring medical card holders to undergo marijuana testing before or during employment.
Who must comply?
The new rules generally apply to:
Employers with five or more employees (excluding religious, fraternal, charitable or sectarian organisations not supported by government funds), employment agencies and trade unions.
What does the ordinance prohibit?
The new rules prohibit employers from discriminating against current or prospective employees based on their status as a “medical marijuana patient.” A “medical marijuana patient” is an individual who:
They qualify for medical marijuana based on a “serious medical condition, disability, or handicap” and are certified under Pennsylvania's medical marijuana law to access marijuana for a recognized medical purpose.
The ordinance expressly prohibits employers from discriminating against medical marijuana patients by requiring pre-employment or on-the-job testing as a condition of employment. Once enacted, employees will be able to file complaints through the city's Human Relations Commission if they believe they have been discriminated against in the workplace because of their lawful use or access to medical marijuana.
Are there any exceptions?
Yes, the new rules provide for important exceptions, as detailed below.
Exceptions for certain jobs or professions.
This provision does not apply to:
Applicants whose positions are subject to drug testing pursuant to state or federal DOT regulations, that require employees to carry firearms, or whose prospective employer is a party to a valid collective bargaining agreement that specifically provides for pre-employment drug testing of such applicants.
Work Restrictions for Medical Marijuana Patients
According to state medical marijuana laws, eligible patients are:
You may not operate or have physical control over certain chemicals, high voltage electricity, or other utility equipment while you have more than 10 nanograms of active THC in your blood. You may not perform work at heights or in confined spaces (such as mining) while under the influence of medical cannabis. You may be prohibited from performing work that your employer deems threatening to the life of you or other employees while under the influence of medical cannabis. You may be prohibited from performing work that your employer deems posing a public health or safety risk while under the influence of medical cannabis.
Permitted Employer Actions
In addition, employers can:
Take disciplinary action against an employee who is a medical marijuana patient if he or she comes to work under the influence and their conduct falls below the standard of care normally expected for that job; Prohibit the use of medical marijuana on workplace premises; Test medical marijuana patients for illegal use of controlled substances; Conduct cause drug testing when a supervisor has reasonable cause to suspect an employee is under the influence of drugs while at work; Conduct drug testing following a workplace accident.
The Code also makes clear that employers will never be required to take any action that would cause them (or anyone acting on their behalf) to violate state or federal law.
What should you do?
If you're an employer in Pittsburgh, you should take the following steps to prepare for the new rules to be signed into law:
Update your policies. Review and, if necessary, revise your hiring and hiring policies to comply with the new rules. Do not make cannabis testing a condition of continued employment or an offer of employment if you know that an individual holds a protected medical cannabis patient status under the new rules. Be aware of the exceptions. Keep in mind that the new rules do not protect certain individuals, such as those who hold certain specified jobs or who are applying for jobs that are covered by labor agreements that require pre-employment drug testing. Employers may also continue to take disciplinary action in some circumstances. For example, an employer may fire an employee for being under the influence of medical cannabis during work hours if the employee's conduct does not meet the standard of care normally accepted for the job. Train your managers. Managers and hiring personnel should be educated on the new rules, including when cannabis testing is prohibited and when employment decisions affecting medical cardholders may be considered discriminatory. Seek guidance. These complex and evolving requirements highlight the importance of working with experienced legal counsel before firing or refusing to hire an employee based on medical cannabis use.
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