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Panelists: Employees who use medical marijuana are now protected

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Employees who use medical marijuana are a new protected class under federal equal employment opportunity laws, according to a panel of experts discussing Pennsylvania’s new medical marijuana law at a Greater Lehigh Valley Chamber of Commerce symposium this morning.

Keya C. Denner, an attorney with Norris, McLaughlin & Marcus in Bridgewater, N.J., said Pennsylvania businesses will need to amend their EEO policies and job descriptions to include provisions on the use of medical marijuana and provide human resources training.

Pennsylvania’s new law legalizing medical marijuana, which was passed in April, regulates its sale and use. About half the states have legalized medical marijuana.

Medical marijuana is primarily available only in pill form in Pennsylvania, not as a combustible, smokable product, though topical oils or vapor forms are available, said panelist Tom Santanna of Tom Santanna Strategic Consulting, which represented the Pennsylvania Medical Cannabis Society’s efforts to pass legislation.

Patients who are prescribed marijuana from a physician certified to prescribe it, get a certificate from the state and a 30-day supply obtainable only from a special dispensary – not a commercial pharmacy, said panelist Frank T. Troilo, a workers’ compensation attorney with Zenith Insurance Co. of Norristown.

Troilo said the new regulations exclude employees in certain occupations from using medical marijuana if it “would put their fellow employees at risk or if the employee’s use would cause a public risk.”

He said employers can’t be sued under the Americans with Disability Act because marijuana is still a controlled substance under federal law.

Panelist Tina Hamilton, of my HR Partner Inc. in Upper Macungie Township, questioned how employers would know if an employee is using medical marijuana.

Santanna said a medically prescribed dosage does not cause impairment.

“You can’t discriminate because they’re using it,” he said.

Denner agreed and said even if employers have a zero-tolerance drug policy, they cannot fire someone because he or she uses medical marijuana, although some businesses, such as heavy equipment operators, may have other policies in place on substances.

Troilo said companies could face liabilities if their employees on medical marijuana go into states with different laws governing its use. He suggested companies revamp their workers’ compensation polices and inform their employees.

“The trucking industry is probably exempted from [the use of medical marijuana]” because marijuana is a controlled substance, Denner said.

An audience member asked about the ramifications for random drug testing or pre-employment drug testing. Hamilton said a high-powered Wall Street financial firm that hired graduates from the best schools and with high grade-point averages told her it stopped testing for marijuana because most of its job candidates said they would fail the test.

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