Employers across the country are increasingly facing the complex intersection of employment law and marijuana legalization. Pittsburgh has added to this evolving landscape with a new ordinance, effective immediately which prohibits pre-employment and post-hire random marijuana testing for medical marijuana patients. Medical marijuana patients are now a protected class in Pittsburgh, requiring significant adjustments to employer drug testing practices, including restrictions on when testing can be conducted during employment without reasonable cause.
Key Provisions of Pittsburgh’s New Ordinance
The ordinance prohibits employers with five or more employees from requiring pre-employment or random post-hire marijuana testing for certified medical marijuana patients. This aligns with Pennsylvania’s Medical Marijuana Act, aiming to prevent discrimination against individuals using marijuana for legitimate medical purposes. However, the ordinance applies only to individuals enrolled in Pennsylvania’s Medical Marijuana Program, excluding recreational users or those certified under other states’ programs.
While the prohibition is broad, exceptions exist for certain safety-sensitive roles, including positions regulated by the Department of Transportation (DOT), roles requiring the use of firearms, and positions governed by collective bargaining agreements that allow marijuana testing. Employers may also prohibit employees from performing tasks that pose risks to public health and safety or involve life-threatening conditions while under the influence of marijuana. Employers should carefully reassess their drug testing policies to ensure compliance with the ordinance while maintaining safety in these roles.
When Testing Is Allowed
Although the ordinance restricts pre-employment marijuana testing, it does not eliminate the ability of employers to conduct marijuana testing during employment. Employers are still permitted to test under specific circumstances. For instance, for-cause testing can be conducted if there is reasonable suspicion that an employee is under the influence of marijuana while at work. Additionally, post-accident testing is allowed if drug use is suspected to have contributed to a workplace accident, and employers should ensure that any post-accident testing is tied to reasonable suspicion that marijuana use played a role. Employers are also free to test for the illegal use of controlled substances, as medical marijuana remains the only protected substance under this ordinance. Furthermore, employers may enforce drug-free workplace policies that prohibit marijuana use on company premises, though they should update these policies to ensure clarity on when testing is permitted. However, routine, random, or testing without reasonable cause of qualified medical marijuana patients outside of these situations would violate the ordinance.
Complying with the Ordinance
In light of Pittsburgh’s ordinance, employers must reconsider how they handle drug testing for prospective and current employees.
One straightforward approach to compliance is to remove THC (the active ingredient in marijuana) from both pre-employment and post-hire random drug screening panels. This ensures that candidates and employees who lawfully use medical marijuana are not tested for THC, eliminating the risk of disqualifying qualified candidates or penalizing employees for lawful medical use. Employers who choose this route should update their drug testing policies accordingly and ensure that hiring managers and employees are fully informed of the changes. By maintaining the ability to test for other substances, employers can uphold workplace safety while complying with the ordinance.
For employers who want to retain THC testing in their drug screening process, another option is to implement a post-offer procedure. This would involve:
- Offering the Job Conditionally: Employers can extend a conditional job offer to an applicant, contingent on passing a drug test and other background check components.
- Asking the Medical Marijuana Question: After the conditional offer is made, the employer can ask the candidate if they are a certified medical marijuana user under Pennsylvania law.
- If the candidate identifies as a medical marijuana user: The employer is prohibited from testing for THC and should proceed with the rest of the drug screening process, excluding marijuana.
- If the candidate does not identify as a medical marijuana user: The employer can proceed with a drug test that includes THC.
This approach aligns with Equal Employment Opportunity Commission (EEOC) guidance, which allows employers to ask about prescription drug use only after extending a conditional job offer. By waiting until after the job offer to ask about medical marijuana use, employers reduce the risk of liability and ensure that any positive drug test results reflect the presence of illegal drugs rather than lawfully prescribed medications.
Once an employee is hired, employers may still conduct for-cause testing, post-accident testing, or test for illegal drugs. Supervisors should be trained to recognize and document signs of impairment and understand when testing is permissible under the ordinance. Employers should also review and update their drug-free workplace policies to clarify when marijuana testing is allowed and ensure that any policies reflect the new legal protections for medical marijuana users.
The Philadelphia Comparison
Employers operating in Pennsylvania’s major cities should note that Pittsburgh’s ordinance is more targeted, addressing only medical marijuana patients. In contrast, Philadelphia enacted an ordinance in 2022 that prohibits pre-employment testing for all forms of marijuana use, not just medical marijuana. Philadelphia’s ordinance provides specific exemptions for law enforcement, positions requiring commercial driver’s licenses (CDLs), and roles that involve supervising vulnerable populations.
Employers in Pittsburgh and Philadelphia should ensure that their drug testing policies reflect the specific requirements of each city. In Philadelphia, the broader ban on pre-employment testing for marijuana requires employers to exercise even more caution when designing their drug testing procedures.
Parting Thoughts
Employers in Pittsburgh must take immediate action to ensure their drug testing policies, processes, and panels are compliant with the new ordinance protecting medical marijuana patients. This includes coordinating with drug testing vendors to remove THC from both pre-employment and post-hire random drug screening panels or implementing a post-offer process for identifying medical marijuana users. By aligning their practices with the ordinance, employers can avoid discrimination claims and ensure fair treatment of all candidates. Additionally, employers should remain aware of broader trends, such as Philadelphia’s more expansive ban on pre-employment marijuana testing, and adjust their policies to stay compliant with evolving regulations.