Don’t Fear the Reefer: Recent Case Shows Need to Rethink Drug Testing

On Oct. 3, 2023, a notable legal event transpired when Seth Unger lodged a complaint against Centre Care, Inc., in the US District Court for the Middle District of Pennsylvania. Alleging violations of both the Americans with Disabilities Act (“ADA”) and Pennsylvania’s Medical Marijuana Act (“PMMA”), Unger brought pertinent issues regarding employment discrimination against medical marijuana users to the forefront.

Unger is certified for medical marijuana use due to his anxiety. He applied for a position at Centre Care, Inc., and was subsequently invited for an interview in Jan. 2023. Upon learning that a pre-employment drug test was requisite, he disclosed his medical marijuana use, which led to the abrupt termination of his interview and rejection of his application. The striking aspect here is that Unger seemingly wasn’t even granted an opportunity for the drug test.

As it stands, no response to Unger’s complaint has been filed. However, this case necessitates reflection among Pennsylvania employers regarding PMMA. Pennsylvania law forbids employers from enacting adverse employment actions solely based on an individual’s status as a medical marijuana user. The PMMA doesn’t mandate employers to accommodate on-site medical marijuana use or influence during work.

Contrastingly, in other jurisdictions like Arizona, protections extend to preventing adverse actions stemming from a positive drug test for medical marijuana users. Drug tests for marijuana can indicate potential impairment but given that detection windows can vary (up to 12 hours in blood, 90 days in hair, 24 hours in saliva, and 30 days in urine), the results may not always reflect recent use or impairment during work hours.

A case in the Eastern District of Pennsylvania held that the PMMA protects medical marijuana users from adverse actions explicitly linked to their status as cardholders. In the Reynolds v. Willert Mfg. Co. case (“Reynolds”), after testing positive and receiving a termination notice, the employee (Reynolds) revealed his medical marijuana user status. The court determined the termination was based on the positive test result rather than the status, ruling in favor of the employer.

Distinguishingly, in Unger’s situation, his medical marijuana user status was disclosed upfront, and adverse action was taken without even conducting the drug test, presenting a contrasting scenario to Reynolds.

Although Unger’s case is in federal court and not binding on Pennsylvania State Court, it can offer invaluable insights and guide subsequent rulings in state courts. Employers in PA should reevaluate their practices concerning medical marijuana to circumvent potential discrimination claims.

The takeaway is the need for reimagining drug testing across varying employment roles. Employers might contemplate differentiating positions based on safety sensitivity, subjecting roles like security guards and forklift operators to drug-testing while potentially alleviating such requirements for non-safety-sensitive positions, such as receptionists. Moreover, prioritizing blood or saliva tests, which are generally more indicative of recent marijuana use compared to urine tests, could be a strategic shift in employment practices.

Through these changes with legal counsel, employers not only broaden their talent pool but also mitigate the risk of encountering discriminatory claims, thereby aligning their practices compassionately and legally in relation to medical marijuana use.

For information about national and state cannabis law matters and regulatory compliance, please contact our Cannabis Law Practice Group attorneys: William J. Beneduce, Esquire (wjbeneduce@norris-law.com) or Benjamin P. Sheppard, Esquire (bsheppard@norris-law.com), or contact our offices at (908) 722-0700.