Can I be fired in Pennsylvania for using medical marijuana?

Since legalizing medical marijuana in 2016 for serious medical conditions such as cancer and epilepsy, Pennsylvania has seen an influx of medical marijuana users. In fact, there are more than half a million registered patients and caregivers, according to the Pennsylvania Department of Health.

Marijuana, however, is still illegal at the federal level, which has created complications in areas of everyday life, such as housing. But what about work? Pennsylvania provides employment protections to medical marijuana patients, but they are limited.

“It’s definitely better to have some protections than none,” says Jamie Gullen, a supervising attorney with Community Legal Services of Philadelphia’s employment unit. But, she says, the laws have limitations, especially for those who use medical marijuana to manage debilitating physical ailments. “The protection isn’t quite as robust as you might think.”

So, what are your rights as a medical marijuana patient when it comes to employment? And what are the limitations? Here is what you need to know:

Pennsylvania’s Medical Marijuana Act provides some specific antidiscrimination protections for registered patients when it comes to employment. Most importantly, the law protects you when it comes to hiring, firing, and retaliation.

The law says that employers can’t “discharge, threaten, refuse to hire, or otherwise discriminate or retaliate against” patients’ “compensation, terms, conditions, location or privileges” solely based on their status as registered medical marijuana users. That means that, among other things, an employer — or potential employer, if you’re looking for work — can’t legally fire or refuse to hire you just because you use medical marijuana.

Those protections apply to things like preemployment and random drug testing, meaning that you can’t be denied a job or, in most cases, fired from one you already have if you fail a drug test for marijuana, says Narberth-based employment attorney Steven Auerbach.

“As long as they are a Pennsylvania resident, they have that card, they use it off work hours, and are eligible for their medicine, they cannot be fired just because they are medical marijuana patients,” he says.

No. And it’s unlikely that an employer will ask if you are one (though that’s not prohibited by law). Auerbach advises that you shouldn’t lie about it, but “if there’s any reason to avoid telling them, don’t go out of your way to tell them.”

Gullen adds that if you’re applying for a job that you know does drug testing, you may want to be up front about your status, and be able to provide supporting documentation. Otherwise, she says, “there may not be any need to alert the employer,” provided you only use marijuana at home, and don’t think it will realistically come up while on the job.

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It’s complicated. In many cases, using medical marijuana while on the job is at the discretion of your employer. Pennsylvania’s law does not require employers to “make any accommodation of the use of medical marijuana on the property or premises of any place of employment.” And, what’s more, employers are able to discipline you for using medical marijuana in the workplace, or for being “under the influence” of the drug if your “conduct falls below the standard of care normally accepted” for your position.

“Basically, it’s that if you appear in some way intoxicated while you’re on the job, and you’re behaving in a way that that employer feels is affecting your job performance,” Gullen says. “They can potentially discipline you for that.”

And that’s likely true even if you are using medical marijuana for something that would be considered a disability under the federal Americans with Disabilities Act. Ordinarily, that law would require an employer to make a “reasonable accommodation” for a person with a disability — but because marijuana is federally illegal, Gullen notes, the ADA wouldn’t apply.

You might, however, have a case under the Pennsylvania Human Relations Act, or the Philadelphia Fair Practices Ordinance at the city level. But that, Gullen says, is an “unsettled area of the law.” Auerbach says that filing a claim under the ADA or PHRA mostly depends on whether your employer knows what your disability is — not just whether they know you’re a medical marijuana patient — so it can get complicated. Especially if you need to use medical marijuana to manage your condition during the work day.

“People who really need marijuana to function because of their disabilities and health conditions are stuck in a difficult situation,” Gullen says. “To be on the safe side, they cannot be using marijuana at work or be under the influence while at work. It limits your ability to manage your medical condition.”

It’s possible, depending on the job, Auerbach says. . For example, Pennsylvania’s medical marijuana law says that patients are prohibited from certain jobs or job functions if they have more than 10 nanograms of THC per milliliter of blood in their system, including working with:

Those rules, Auerbach says, are “zero tolerance,” and you cannot have above a certain amount of THC in your system at all, even if you only medicate off work hours.

There are other activities that are designated “zero tolerance at work,” Auerbach says, meaning that you can’t do them if you are under the influence of medical marijuana at work (but you still should be able to medicate off work hours). Those include:

As marijuana attorney Patrick Nightingale writes, that can make your legal protections complicated. If you work in the service industry, hospitality, or at a desk job, you are likely to get the law’s full protections, but “‘blue collar’ employees may not be protected from being fired or not hired.”

If you are fired or refused a job because of your status as a medical marijuana patient, in many cases, you can file a lawsuit. While Pennsylvania’s medical marijuana laws don’t explicitly state that you can sue over that type of discrimination, case law in the state has upheld what is known as a “private right of action,” which allows lawsuits to be filed under the Medical Marijuana Act.

If you sue, Auerbach says, you can include both out-of-pocket damages and punitive damages. And unlike with the ADA and PHRA, there is no “employee threshold,” so even companies with only a couple of employees are subject to lawsuits if they violate its provisions. (By contrast, the ADA applies to companies with 15 or more employees, while the PHRA is applicable to companies with four or more employees.)

That’s all true for employees of private companies, . But public employees, Auerbach says, may have fewer options, as there are limited situations in which you can sue the government. Currently, he says, it’s not clear how courts would react to such a lawsuit, so public employees “may be left in the lurch” when it comes to medical marijuana employment protections.

Even if you can file a lawsuit, keep in mind that it takes time — up to 18 months, in Auerbach’s estimation — before a judge could possibly rule in your favor. So, while you have some protections as a medical marijuana patient, enforcing them is often an arduous, lengthy process. Absent a change in federal or state law, that’s not likely to change soon.

“People want jobs, not lawsuits,” Auerbach says. “They are being forced to choose between their jobs and their medicine. And they shouldn’t have to.”

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