On September 24, 2024, the Pittsburgh, PA City Council passed a new ordinance prohibiting discrimination against an individual’s status as a medical marijuana patient. Mayor Ed Gainey signed the ordinance the same day and it is effective immediately.
The new ordinance makes it an unlawful employment practice 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 a pre-employment drug test 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.
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 new ordinance includes industry and position-specific exceptions, as well as safety-related exceptions to the otherwise blanket prohibition on marijuana testing of Pennsylvania Medical Marijuana Program participants. For example, the prohibition does not apply to any persons working in positions subject to drug testing due to regulations issued by the U.S. Department of Transportation or the Pennsylvania Department of Transportation; any persons working in positions that require the person to carry a firearm; or any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of applicants.
The Pittsburgh ordinance is consistent with Pennsylvania’s Medical Marijuana Act, insomuch that employers may take action against medical marijuana patients under the influence of medical marijuana, which is considered established if a test shows more than 10 nanograms of active tetrahydrocannabinol per milliliter in their blood. State law permits an employer to prohibit workers from (a) operating or being in control of chemicals requiring permits issued by the government, or (b) operating or being in control of high-voltage electricity or public utilities. In addition, medical marijuana patients who are under the influence of medical marijuana may not (a) perform any employment duties at heights or in confined spaces, (b) perform tasks deemed by the employer to be life-threatening to the employee or to other employees of the employer, or (c) perform any duty that could result in a public health or safety risk while under the influence of medical marijuana.
Pittsburgh’s new ordinance also specifically allows employers to continue to do the following:
- Take disciplinary action against medical marijuana patients if an employee is under the influence of medical marijuana in the workplace or is working while under the influence of medical marijuana, where the employee’s conduct falls below the standard of care normally accepted for their position;
- Prohibit the use of medical marijuana on its property or in the workplace;
- Test medical marijuana patients for illegal use of controlled substances;
- Conduct for-cause drug testing if there is reasonable cause to suspect an employee is under the influence of a drug at work; and
- Perform drug tests after a workplace accident.
In light of this new ordinance, employers that hire or employ workers in Pittsburgh may want to evaluate their pre-hire drug testing program and ensure: (1) they have a process for identifying workers who participate in the Pennsylvania Medical Marijuana program; and (2) identify which positions they believe would be excepted from the pre-hire testing ban, either for safety reasons or because of an existing collective bargaining agreement.
The foregoing commentary is not offered as legal advice but is instead offered for informational purposes. First Advantage is not a law firm and does not offer legal advice. The foregoing commentary is therefore not intended as a substitute for the legal advice of an attorney knowledgeable of the user’s individual circumstances or to provide legal advice. First Advantage makes no assurances regarding the accuracy, completeness, currency, or utility of the following information. Regulatory developments and impacts are continuing to evolve in this area.
