Pittsburgh legislators voted this week to pass a new city ordinance pertaining to medical marijuana use and workplace drug testing (the ordinance). The ordinance contains detailed guidance for impacted employers about workplace drug testing and medical cannabis users.
Definitions Provided by the Ordinance
The ordinance provides a number of pertinent definitions for employers, outlined below.
Discrimination is defined as any difference in treatment based on an individual’s medical cannabis cardholder status (651.04(b)).
An employer is any individual employing five or more employees (excluding immediate family). This includes the city and any government agency under city jurisdiction (651.04(c)).
An employment agency is an individual who regularly procures opportunities for employment or procures, recruits, refers, or places employees (651.04(e)).
A labor organization is an organization that exists for the purpose of collective bargaining or dealing with employers regarding grievances, terms/conditions of employment, or mutual aid/protection regarding employment (651.04(f)).
A medical marijuana patient is defined as:
“An individual who has a serious medical condition, disability or handicap such that qualifies them for medical marijuana use and who is certified under the Pennsylvania Medical Marijuana Act of 2016 to access marijuana for a certified medical use.” (651.02(aaa))
What Does the Ordinance Say?
Under the ordinance, the city establishes a new public policy prohibiting discrimination because of an individual’s status as a medical cannabis patient.
The ordinance then goes on to stipulate that it is an unlawful employment practice, except when based on national security regulations established by the state or the U.S. or where based upon a bona fide occupational exemption for an employer, agency, or labor organization to discriminate in hiring or employment against any individual (employee or applicant) because of the individual’s status as a medical cannabis patient. This includes requiring pre-employment cannabis testing and/or post-hire cannabis testing during the course of employment as a condition of an individual’s employment.
What Guidance is There for Employers Specifically?
The ordinance includes a number of “guardrails” for employers, including the following:
- A medical cannabis patient may not operate or be in physical control of chemicals requiring a permit issued by the federal government or state government or agency thereof or high-voltage electricity or any other public utility if under the influence while having a blood content of more than 10 nanograms of active tetrahydrocannabis per milliliter of blood.
- A medical cannabis patient may not perform any duties at heights or in a confined space (including, but not limited to, mining) while under the influence of medical cannabis.
- Employers can prohibit medical cannabis patients from performing any task that the employer deems to be life-threatening (to the employee or another individual) while under the influence. Such prohibition shall not be deemed an adverse employment decision “…even if the prohibition results in financial harm for the patient.”
- Employers can prohibit medical cannabis patients from performing duties which could result in a public health or safety risk if the individual is under the influence. Such prohibition shall not be deemed an adverse employment decision “…even if the prohibition results in financial harm for the patient.”
Employers can take disciplinary action against medical cannabis using individuals if the individual is under the influence of medical cannabis in the workplace or is working while under the influence of medical cannabis, where their conduct falls below the standard of care that is normally accepted for the position.
Employers can prohibit the use of medical cannabis on workplace premises or property. Employers retain the right to test for-cause when a supervisor has reasonable suspicion that an employee is under the influence of a drug while at work. The ordinance does not apply to testing performed after workplace accidents.
The Ordinance Includes Certain Carve-Outs
The ordinance does not apply to individuals in the following positions or professions:
- Positions subject to drug testing per the U.S. Department of Transportation (DOT) or the Pennsylvania Department of Transportation.
- Positions requiring an individual to carry a firearm.
- Applicants to positions where the employer is party to a collective bargaining agreement that specifically addresses pre-employment drug testing.
The ordinance does not require employers to commit any acts that would put them in violation of Pennsylvania or federal law. Additionally, the ordinance does not supersede any existing state or federal law.
Next Steps for Employers
Generally, Pittsburgh city ordinances are effective on the date that they are recorded as a permanent ordinance unless otherwise specified. Employers in Pittsburgh should take immediate action to comply with the new ordinance. Additionally, Pittsburgh employers should review Pennsylvania’s medical cannabis law carefully to ensure that they are in compliance with both the city ordinance and the state law.
The full text of the ordinance can be found here: https://pittsburgh.legistar.com/LegislationDetail.aspx?ID=6771579&GUID=CF4DC26C90FC-4CEF-9486-0EA2ECC96AC3&Options=&Search=&FullText=1
Key Takeaways:
- Pittsburgh passed a city ordinance generally prohibiting employers from discriminating against medical cannabis users.
- The city ordinance generally prohibits required pre-employment cannabis testing and/or continued cannabis testing throughout employment as a condition of employment for medical cannabis users.
- There are a number of positions to which the ordinance does not apply, and a number of “guardrails” that provide guidance for employers about what medical cannabis users can and cannot do in the workplace.
Related Articles:
About DISA Global Solutions
Founded in 1986, DISA is the industry-leading provider of employee screening and compliance services. Headquartered in Houston, with more than 35 offices throughout North America and Europe, DISA’s comprehensive scope of services includes drug and alcohol testing, background screening, occupational health, and transportation compliance. DISA assists employers in making informed staffing decisions while building a culture of safety in their workplace.