On January 10, 2023, Lancaster County Court of Common Pleas Judge Jeffrey Wright addressed the question that has been plaguing employers since the passage of the PA Medical Marijuana Act (the “Act”) – what constitutes being “under the influence” for purposes of the Act’s safety exception?  As a reminder, when the Act was passed, the legislature included a broad safety exception within Sections 510(3) & (4) of the Act, which provides:

A patient may be prohibited by an employer from performing any task which the employer deems life-threatening, to either the employee or any of the employees of the employer, while under the influence of medical marijuana.

A patient may be prohibited by an employer from performing any duty which could result in a public health or safety risk while under the influence of medical marijuana.

However, ‘under the influence’ was not defined for purposes of these provisions.

What is “under the influence?”

In the Lancaster County case of Clark v. J.R.K. Enterprises, Inc., the plaintiff was a roadside flagger who utilized medical marijuana outside of work to treat anxiety.  After several of his co-workers were sent for random drug tests, he admitted to his employer that he used marijuana nightly and, if tested, would test positive because he always had marijuana in his system.  The employer considered flagging to be a safety sensitive job and determined that plaintiff could not perform the flagging job unless he agreed to stop using medical marijuana.  Challenging this decision, the plaintiff filed suit, alleging discrimination in violation of the Act.

The employer moved for dismissal, arguing that plaintiff’s own admission that he “always had marijuana in his system” meant that he would be consistently under the influence and thus should not be performing safety sensitive duties.  Initially, Judge Wright denied the motion, holding that there was a factual dispute regarding the definition of ‘under the influence,’ which experts could address at trial.  However, following the decisions in Commonwealth v. Dabney (Pa. Super. 2022) and Commonwealth v. Haney (Pa. Super. 2022), Judge Wright reconsidered and dismissed the suit.

Dabney and Haney are both DUI cases in which, after being pulled over, the driver acknowledged medical marijuana use, the police officer had probable cause to require a drug test and the driver subsequently tested positive for marijuana.  In both cases, the drivers argued that they should not be charged with DUI, because their marijuana use was legal.  The courts disagreed.  In Dabney, the court held that the Act does not exempt a driver with a medical marijuana card from the prohibition against driving with any amount of marijuana or marijuana metabolites in the driver’s system.  Further, the court listed all of the actions permitted by the Act: growing, processing, manufacturing, acquiring, transporting, selling, dispensing, distributing, possessing and consuming marijuana.  It then noted what is not specifically permitted in the Act: “driving with a controlled substance in one’s blood.”  Likewise in Haney, the court upheld Pennsylvania’s zero tolerance DUI law for marijuana metabolites and noted that “driving after using medical marijuana, a Schedule I controlled substance, is not included in the lawful use of medical marijuana under the Act.”

Applying the rationale of Dabney and Haney to the Clark case, Judge Wright agreed with the employer’s argument that it would be absurd to criminally prosecute a driver for having marijuana in their blood, while at the same time allowing Clark to direct and control traffic on roadways with marijuana in his blood.  Because “the lawful use of medical marijuana does not include driving after using medical marijuana,” Judge Wright concluded that the “lawful use of medical marijuana cannot, likewise, include dressing in safety gear, entering the roadway, and directing drivers through precarious construction zones after using medical marijuana.”  Further discussing the issue, Judge Wright concluded that the General Assembly purposefully failed to include a definition of “under the influence” in the catch-all safety exception to the Act, whereas elsewhere in the Act, the term “under the influence” was linked to specific levels of THC in blood serum.  Based on this conclusion, the Judge reasoned that “the General Assembly’s clear choice to omit a specific nanogram level that employers may allow or prohibit relieves employers of a practically impossible-to-execute duty,” and that “to construe ‘under the influence’ to mean anything other than having any amount of marijuana in a Patient-Employee’s system would be altogether untenable.”

What does this mean for employers?

So, what is the takeaway from the Clark decision?  First, it is important to keep in mind that the decision of one Court of Common Pleas Judge is not necessarily binding on any other judge in the Commonwealth.  Accordingly, a judge in another county or on a higher court would be free to disagree with Judge Wright and reach a different conclusion.  However, Judge Wright’s rationale is based upon the holding of two recent Superior Court cases, which are binding on all judges in the county courts.  Accordingly, employers who wish to uphold a zero-tolerance policy for employees performing clearly safety-sensitive jobs (jobs that could be life threatening and jobs that could result in public health or safety risks) now have a very strong argument for doing so.  This is especially true when the employee either actually tests positive, despite only off duty use, or admits that they will test positive.

If you have questions regarding which jobs are safety sensitive and whether a zero-tolerance policy makes sense for your business, please reach out to Denise Elliott or another member of the McNees Labor and Employment Group.