Medical marijuana patient protection from drug test: actual effectiveness of the law?

Question

I'm under the impression that in Pennsylvania, medical marijuana users are protected from employer discrimination:

No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee's compensation, terms, conditions, location or privileges solely on the basis of such employee's status as an individual who is certified to use medical marijuana.

Section 2103(b)(1), Pennsylvania Medical Marijuana Act, 2016.

How does this work in practice? Particularly, does it protect "green card" holders from a positive drug test during the hiring process? Is it correct that withdrawing a job offer based on a test positive for THC products would be illegal by this legislation? If so, to what extent do employers feel bound by this act (currently, in Pennsylvania); i.e. whether in knowing or unknowing defiance of this act, would a company be likely to feel comfortable withdrawing a job offer after a positive test?

Thank you.

Answer 1

It works by prohibiting discrimination based on use of medical marijuana, thus it limits employer actions w.r.t. hiring, firing, and on the job treatment. It is not an absolute prohibition. §2103(b)(3) states that

Nothing in this act shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of Federal law.

Since employers may be subject to federal drug-free workplace rules, detectable usage of medical marijuana is a fireable offense on such jobs, until the federal regulations are eliminated. The law is also clear that this does not create a right to be under the influence while on the job, and §510 lists definite prohibitions against actions while under the influence.

As for the question of whether the law prohibits discrimination based on simple possession of a card but does not prohibit discrimination on the basis of actual use (leaving aside the preceding disclaimers), this has been decided in Palmiter v. Commonwealth Health Systems, Inc. – it's not just card-possession that is protected. Indeed, the hospital in this lawsuit did not contest the claim that the law protects employees who use medical marijuana, the dispute was over whether a cause of private action was created (can a fired employee sue? "Yes", says the court). See also Hudnell v. Thomas Jefferson Univ. Hosps.