October 25th, 2024 | Heather Horn, VP D&HS Product Fulfillment, Sterling

Pittsburgh Limits Employment Drug Testing for Individuals with Medical Marijuana Cards

On September 24, 2024, City of Pittsburgh Mayor Ed Gainey signed into effect a new ordinance that makes it illegal for Pittsburgh employers to perform pre-employment marijuana testing on candidates who hold a valid Pennsylvania medical marijuana card. The ordinance also limits an employers’ right to require marijuana tests of employees who are certified under Pennsylvania law to use marijuana for medical reasons during employment, unless there is reasonable suspicion of on-the-job impairment. 

This latest law designed to protect an individual’s right to use marijuana off the job introduces even greater drug testing complexity for employers seeking to help ensure a safe and productive workplace.   

Read on for more details, what this means for any Pennsylvania-based organization, and how this may impact drug screening more broadly. 

Pittsburgh’s Medical Marijuana Testing Ordinance Details 

Designed specifically to restrict discrimination against medical marijuana patients, in many ways the Pittsburgh ordinance is similar to the marijuana laws adopted by other local jurisdictions. The Pittsburgh ordinance: 

  • Allows for a few industry and job-specific exceptions, including positions regulated by the U.S. Department of Transportation (DOT) and Pennsylvania Department of Transportation, as well as positions where the individual must carry a firearm. 
  • Prohibits the use of medical marijuana on employer property or in the workplace. 
  • Permits drug testing Pittsburgh employees when there is reasonable suspicion of impairment. 
  • Allows for disciplinary action against employees certified to use medical marijuana if they are under the influence in the workplace or working while under the influence of marijuana. 
  • Permits drug testing Pittsburgh employees after a workplace accident. 

How Pittsburgh’s Medical Marijuana Ordinance Is Different 

The Pittsburgh ordinance differs from other local laws that protect a worker’s right to use marijuana. It specifically addresses whether an employer can use pre-employment drug tests on an individual who is certified to use medical marijuana rather than placing the focus on limiting employer actions against a candidate with a medical marijuana card who tests positive. Employers usually do not know that an individual has a medical marijuana card unless the candidate offers this information. In fact, potential employers are generally prohibited by the American Disabilities Act (ADA) from asking about medical conditions before a conditional offer of employment.  

The introduction of this ordinance changes the dynamics of drug testing for employers operating in Pittsburgh. Local employers are encouraged to review their drug testing policy with their qualified legal counsel considering these requirements. 

The Challenge of Drug Testing for Marijuana 

As more and different local laws are passed to expand the protection of an employee’s right to use marijuana off the job, it’s increasingly challenging for multi-state employers to maintain a drug-free workplace policy that tests for marijuana. Consider the variations of laws below from the past three years: 

Philadelphia’s 2022 Marijuana Ordinance 

In contrast to Pittsburgh’s marijuana law, Philadelphia’s Prohibition on Testing for Marijuana as a Condition for Employment ordinance, effective January 1, 2022, requires no employer insight into the medical status of job candidates. Instead, it prohibits all pre-employment testing for marijuana as a condition of employment and details numerous exceptions to the law based on industries and job positions. This includes positions that require testing via federal or state regulations, law enforcement positions, as well as positions that require supervision of vulnerable individuals.  

Further, Philadelphia’s ordinance expands the list of possible exceptions to include positions where individuals could impact the health and safety of other employees or members of the public as defined by the enforcement agency. 

Philadelphia’s law does not address testing employees for marijuana and does not prevent an employer from disciplining employees who are under the influence or in possession of marijuana in the workplace. 

New York State’s Marijuana Regulation and Taxation Act

New York State’s marijuana legislation, adopted in March 2021, takes a different approach to protect candidate and employee rights. New York’s Marijuana Regulation and Taxation Act

  • Allows employers to test for marijuana when there is reasonable suspicion. 
  • Prevents employers from taking adverse employment actions based on a positive marijuana drug test result.  
  • Provides for no safety-sensitive exceptions. Drug testing mandated by federal law for safety sensitive positions regulated by the U.S. DOT or required by federal contract must still be conducted. 

New York’s law allows employers to prohibit on-duty use and possession of marijuana, as well as impairment at work. However, since there are no accepted standards for proving marijuana impairment, addressing impairment under New York state law is currently challenging.  

Marijuana Testing in California and Washington States

California Assembly Bill 2188 and Washington Senate Bill 5123 both went into effect in January 2024. These bills focus on protecting an employee’s right to use marijuana legally by establishing recent use. They require employers to test for THC (tetrahydrocannabinol), the psychoactive ingredient in marijuana, which typically has a much shorter detection window since it is quickly metabolized and eliminated from the body. 

Both bills: 

  • Make it unlawful for employers to discriminate against individuals when making hiring decisions based on a person’s legal use of marijuana off the job  
    (California law extends their discrimination protection to cover conditions of employment and termination for employment testing situations such as reasonable suspicion or post-accident). 
  • Require employers to test for THC rather than a longer-lasting metabolite to establish current impairment on the job. 
  • Do not allow an employee to be impaired, use, or possess marijuana on the job.  
  • Include specific industry or position-based exceptions. 
  • Have no impact on federally-mandated drug testing, including DOT testing for regulated modes of transportation. 

While most labs’ urine testing programs cannot test for THC, oral fluid testing does. Since oral fluid testing is allowed in both states, it provides a legally defensible option for employers who want to perform marijuana testing in California and Washington states to demonstrate recent use. 

Takeaways 

While marijuana laws are constantly changing on state and city levels, an employer’s responsibility to provide a safe and productive work environment does not. The recent introduction of Pittsburgh’s medical marijuana law underscores the importance of conducting frequent, regular reviews of your drug-free workplace policy with your qualified legal counsel. Policy reviews need to consider not only the explicit locales where you are hiring, but also the specific jobs you are hiring for at each location.    

Additionally, with publicity surrounding each new local law, false impressions and misunderstandings are common. Employees and supervisors need to be educated about how recent marijuana laws have changed employee rights and your drug-free workplace policy. Moreover, supervisors should be professionally trained to know the signs and symptoms of impairment, and what actions they are allowed to take if they identify impairment in the workplace. 

Sterling is proud to partner with you to offer a wide selection of Drug & Health Screening solutions to help you to stay compliant while also working to protect the safety of your employees and the public.  

Please reach out to Sterling with questions or concerns; our Drug & Health Screening experts are ready to assist.

This content is offered for informational purposes only. First Advantage is not a law firm, and this content does not, and is not intended to, constitute legal advice. Information in this may not constitute the most up-to-date legal or other information.

Readers of this content should contact their attorney or lawyer to obtain advice concerning any particular legal matter. No reader, or user of this content, should act or refrain from acting on the basis of information in this content without first seeking legal advice from counsel or lawyers in the relevant jurisdiction. Only your individual attorney or legal advisor can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation. Use of, and access to, this content does not create an attorney-client relationship between the reader, or user of this presentation and First Advantage.