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New Pennsylvania Laws Affect Pre-Employment Marijuana Testing


For Pennsylvania employers, conducting pre-employment drug tests as a part of the background check process is a good way to protect the safety of their businesses and reduce on-the-job accidents.

However, employers must be aware of two recent changes to the laws, including a new city ordinance in Philadelphia and a recent decision issued by the Superior Court of Pennsylvania.

New Marijuana Drug Testing Ordinance in Philadelphia

On April 22, 2021, the Philadelphia City Council passed Philadelphia Code Chapter 9-4700, which was signed into law by Mayor Jim Kenney on April 28.

This law prohibits pre-employment drug tests for marijuana as a condition of employment and will be effective on Jan. 1, 2022.

The new marijuana testing ordinance applies to employers, employment agencies, labor organizations, and their agents when they condition offers of employment on marijuana drug testing.

There are a few exceptions to this new ordinance for the following types of employers:

  • Law enforcement agencies
  • Companies hiring for positions to care for children, disabled people, medical patients, and other vulnerable populations
  • Companies hiring for jobs that require commercial driver’s licenses
  • Any employer hiring an employee for a position that could significantly affect the safety or health of the public or other employees

The ordinance also provides an exception for any drug testing otherwise required by state or federal laws for safety or security purposes.

It also exempts federal contractors that are required to conduct pre-employment drug testing as a condition of receiving a federal grant or contract and employers that have collective bargaining agreements in place that specifically call for drug testing of applicants as a condition of employment.

Pennsylvania Appellate Decision

The Superior Court of Pennsylvania issued a decision on Aug. 5, 2021, that also could impact employers throughout the state when they conduct pre-employment drug tests on applicants who are certified users of medical marijuana.

In Palmiter v. Commonwealth Health Systems, Inc., 2021 PA Super 159 (2021), the Superior Court affirmed a decision made by the Lackawanna County Court of Common Pleas, finding that the Pennsylvania Medical Marijuana Act allows certified medical marijuana users to sue employers that take adverse job actions based on positive results on marijuana drug tests.

The Superior Court held that 35 P.S. Health and Safety § 10231.2103 includes an implied right for aggrieved certified medical marijuana users to file lawsuits against their employers for basing adverse job decisions on their marijuana use.

Factual Background

The plaintiff started working as a medical assistant in 2017 for Medical Associates of NEPA. She received her license to use medical marijuana in Dec. 2018.

Medical Associates of NEPA was acquired by Commonwealth Health Systems at the end of 2018. In Jan. 2019, the plaintiff applied to work as a certified medical assistant because she had been told that she was considered to be a new employee due to the acquisition.

She was required to submit to a pre-employment drug test, which was positive for marijuana. The hospital terminated her based on the positive drug test despite her medical marijuana certification.

The plaintiff sued the hospital, alleging that it had violated the Medical Marijuana Act and had wrongfully discharged her. The hospital filed a motion to dismiss, arguing that the MMA does not provide a right of private action. The Court of Common Pleas found that the law did include an implied private right of action for aggrieved applicants and employees, and the hospital appealed.

The hospital argued that the Pennsylvania Department of Health has sole enforcement authority for the MMA and exclusive jurisdiction.

However, the Superior Court of Pennsylvania disagreed, holding that the Department of Health does not have exclusive authority to enforce the MMA and that aggrieved employees and applicants do have the right to sue employers for taking adverse action based on positive marijuana tests when they are certified medical marijuana users.

What These Changes Mean for Pennsylvania Employers

Employers in Philadelphia need to prepare for the new ordinance that will be effective on Jan. 1, 2022, and should make any necessary changes to their drug and alcohol testing policies.

They should also look for the enforcement agency to issue regulations about which types of jobs are considered to significantly affect the safety or health of the public or other employees that might qualify for an exception to the prohibition against pre-employment marijuana testing.

All employers in Pennsylvania need to be aware of the recent Superior Court decision in Palmiter. This is the first decision of its kind at the appellate level in Pennsylvania. Lower courts are bound by it, meaning that they must allow lawsuits filed by certified medical marijuana users against employers to proceed.

Employers throughout the state outside of Philadelphia that continue to conduct pre-employment drug tests and condition employment based on the results need to ensure that they do not withdraw job offers made to certified medical marijuana users based on a positive marijuana result.

If they do, the applicants or employees could file lawsuits under the MMA against them.

Non-exempt Philadelphia employers will not be allowed to request marijuana tests but can check for other substances. Those located across the state need to be careful to check whether anyone who is positive for marijuana is a certified marijuana user before taking an adverse employment action.

Considering these changes, all employers in both Philadelphia and throughout the state should carefully review their current drug testing policies to ensure that they are compliant.

Looking to Run Compliant Drug Testing in PA? We Can Help

Pre-employment drug tests are used by many employers to ensure the safety of their workplaces. As marijuana laws continue to be passed in cities and the state, keeping current with the changes is critical.

It is difficult to keep up to date with the constantly changing drug testing laws. When you work with iprospectcheck for your employment background checks and pre-employment drug testing, we keep current with the latest changes to help you remain compliant.

To learn more about the employment background check and clinical testing services we offer to employers in Pennsylvania and how we can help, call us today for a free quote: (888) 808-9997

DISCLAIMER: The resources provided here are for educational purposes only and do not constitute legal advice. Consult your counsel if you have legal questions related to your specific practices and compliance with applicable laws.

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About the Author
Matthew J. Rodgers

Matthew J. Rodgers

Matthew J. Rodgers is a highly accomplished business executive with over 30 years of experience providing strategic vision and leadership to companies ranging from the fortune 500 to iprospectcheck, a company which he co-founded over a decade ago. Matthew is a valued consultant who is dedicated to helping companies create and implement efficient, cost effective and compliant employment screening programs. Matt has been a member of the Professional Background Screeners Association since 2009 . When not focused on iprospectcheck, he can be found spending time with his family, fly fishing, or occasionally running the wild rivers of the American west. A lifetime member of American Whitewater, Matt is passionate about protecting and restoring America’s whitewater rivers.