Could you be fired for using medical cannabis?
Maybe. Maybe not.
A little more than one month into the Pennsylvania's new medicinal marijuana program, local officials are asking themselves — and each other — how to handle workplace drug testing.
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The conundrum is especially salient for the City of Philadelphia, which employs roughly 30,000 workers, according to Councilwoman Cherelle Parker.
In an exclusive interview with NBC10, Parker revealed that she is considering “legislative remedies” that would shield city employees who are also medical marijuana patients.
“We have the moral imperative to explore what protections, as a city, we can offer to our own,” she said.
While other states with cannabis programs have addressed the problem retroactively in court, Philadelphia hopes to find a “proactive” solution, Parker, a Democrat who represents neighborhoods in Northwest and Northeast Philadelphia, added.
Statewide, more than 21,000 patients have registered to participate in the medical marijuana program, according to the Department of Health. More than 6,000 have been certified by a physician.
Yet Pennsylvania's current medical marijuana bill only protects employees from workplace discrimination. It states that companies cannot fire or punish someone “solely on their basis of their status as a certified” cannabis user.
The bill also prohibits patients from handling certain chemicals, operating high-voltage electricity and public utilities and performing any duties in heights or confined spaces.
But the statute ultimately gives employers broad discretion over regulating what types of jobs can be performed by a medical marijuana consumer. It also does not address pre-employment or workplace screening.
“Ultimately, no employer is required to make any accommodations to cannabis patients,” said Joshua Horn, a partner and co-chair of the cannabis law practice at Fox Rothschild.
Cannabis remains illegal at the federal level. It is considered a Schedule 1 drug with no medicinal value, according the DEA.
Because of that “the commonwealth will not impose any obligation to violate federal law," Horn said.
But with 29 states, Puerto Rico, Guam and the District of Columbia all operating their own pot programs, the question of how to handle workplace drug testing is becoming more critical. Like the programs themselves, each state has answered the question differently.
For example, a judge in Colorado, one of the first states to legalize adult-use recreational cannabis, ruled against a Dish Network employee who was fired after testing positive for THC. Brandon Coats, who is paralyzed from the waist down after a car accident, maintained that he only used cannabis to treat pain associated with muscle spasms. He was never impaired during work hours, according to his attorneys.
But the Colorado Supreme Court ruled in 2015 that despite his responsible use, Coats was still violating federal law. The Dish Network was within its rights to fire him.
Across the country in Massachusetts, the state’s highest court ruled last year in favor of a patient suffering from Crohn’s disease who failed a drug test.
“The use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication,” Chief Justice Ralph D. Gants said.
In Philadelphia, the question of workplace testing has yet to be raised.
At least in court.
To Parker’s point of preemption, Democratic At-Large Councilman Derek Green is working with Mayor Jim Kenney’s office to create a citywide advisory board that would help create a framework for residents, employers and law enforcement officials regarding the medical marijuana program.
The problem, Green said, is the ongoing confusion about how cannabis fits into the community at large.
“I will give the commonwealth credit in the way they put together their program, but we still have to do a better job of educating constituents,” he said.
At least one major employer is prepared to create its own policy regarding workplace drug testing. The International Brotherhood of Electrical Workers (IBEW) Local 98 has hired an advisor to guide the union as Pennsylvania’s program expands.
For the union, arguably the most influential in Philadelphia, the goal is twofold.
“We are extremely invested in the industry,” spokesman Frank Keel said. “It’s going to mean a lot of work.”
But electrical workers, who spend hours hunched over, carrying heavy equipment, and working on live electrical systems, are especially susceptible to injury. And many of those injuries come with prescriptions for opioids.
In the last 16 months, eight members of Local 98 died from opioid drug overdose. Current union policy prohibits drug use of any kind, including medical marijuana. But Keel said cannabis is already starting to change the landscape and a new policy could be instituted later this year.
“If medical marijuana does have valuable pain benefits, if it is a much safer alternative for pain relief, then we are more than open to it,” Keel said.