PRINTER'S NO. 1834
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
1290
Session of
2024
INTRODUCED BY STEFANO, J. WARD, AUMENT, PENNYCUICK, BREWSTER,
YAW AND ARGALL, JULY 17, 2024
REFERRED TO LAW AND JUSTICE, JULY 17, 2024
AN ACT
Amending the act of April 17, 2016 (P.L.84, No.16), entitled "An
act establishing a medical marijuana program; providing for
patient and caregiver certification and for medical marijuana
organization registration; imposing duties on the Department
of Health; providing for a tax on medical marijuana
organization gross receipts; establishing the Medical
Marijuana Program Fund; establishing the Medical Marijuana
Advisory Board; establishing a medical marijuana research
program; imposing duties on the Department of Corrections,
the Department of Education and the Department of Human
Services; and providing for academic clinical research
centers and for penalties and enforcement," in preliminary
provisions, further providing for definitions; in patients,
further providing for prohibitions; in miscellaneous
provisions, further providing for protections for patients
and caregivers and providing for enforcement and civil
actions; and promulgating regulations.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 103 of the act of April 17, 2016 (P.L.84,
No.16), known as the Medical Marijuana Act, is amended by adding
definitions to read:
Section 103. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
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context clearly indicates otherwise:
* * *
"Essential functions." The fundamental, not marginal, duties
of a position.
* * *
"Impaired." As follows:
(1) Symptoms of being under the influence of marijuana
that may decrease or lessen an employee's performance of
essential duties or tasks that an employer, in good faith,
believes will result in carelessness, negligence or disregard
for the safety of themselves or others and disrupt business
operations.
(2) Observable symptoms of impairment from medical
marijuana may include, but are not limited to, the employee's
speech, mobility, physical dexterity, agility, coordination,
demeanor, appearance, odor or irrational or unusual behavior.
* * *
"Safety-sensitive position." A position that requires any
activity that an employer reasonably believes presents a
potential risk of harm to the health or safety of an employee or
others, including, but not limited to:
(1) Duties performed at heights or in confined spaces,
to which the following shall apply:
(i) The term "at heights" shall mean an activity
undertaken in any place where, if there were no safety
precautions in place, a person could fall a certain
distance, resulting in personal injury.
(ii) The term "confined space" shall mean a space
with limited openings for entry or exit that is large
enough for entering and working and that is not designed
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for continuous worker occupancy, including, but not
limited to, mines, underground vaults, tanks, storage
bins, manholes, pits, silos, underground vaults and
pipelines.
(2) The operation of any motor vehicle or other vehicle,
including, but not limited to, a forklift.
(3) Operating, repairing, maintaining or monitoring the
performance or operation of any equipment, machinery, power
tools, or manufacturing process, the malfunction or
disruption of which could result in injury or property
damage.
(4) The performance of official firefighting or rescue
duties.
(5) The operation, maintenance or oversight of critical
services and infrastructure, including, but not limited to,
electric, gas and water utilities, power generation or
distribution.
(6) The extraction, compression, processing,
manufacturing, handling, packaging, storage, disposal,
treatment or transport of chemicals or other potentially
volatile, flammable, combustible materials, elements,
chemicals or other highly regulated component.
(7) Dispensing or handling pharmaceuticals.
(8) Carrying a firearm or any device or weapon designed
or primarily employed so as to incapacitate an individual
while minimizing fatalities, permanent injury or undesired
damage to property or the environment.
(9) Direct patient, elder or child care.
* * *
"Under the influence." One or more of the following:
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(1) A drug test pursuant to which it is determined that:
(i) the level of tetrahydrocannabinolic acid in the
individual's urine is equal to or greater than 15
nanograms per milliliter; or
(ii) the individual has provided an adulterated or
substituted testing sample.
(2) An employer's good faith determination that an
employee or job applicant is under the influence of marijuana
based on observable physical behavior or characteristics,
provided that an employee may rebut the determination by
immediately submitting to a drug test, the results of which
demonstrate that the level of tetrahydrocannabinolic acid in
the employee's urine is less than 15 nanograms per
milliliter.
Section 2. Sections 510 and 2103(b) of the act are amended
to read:
Section 510. Prohibitions.
The following prohibitions shall apply:
(1) A patient may not operate or be in physical control
of any of the following while under the influence with a
blood content of more than 10 nanograms of active
tetrahydrocannabis per milliliter of blood in serum:
(i) Chemicals which require a permit issued by the
Federal Government or a state government or an agency of
the Federal Government or a state government.
(ii) High-voltage electricity or any other public
utility.
[(2) A patient may not perform any employment duties at
heights or in confined spaces, including, but not limited to,
mining while under the influence of medical marijuana.
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(3) A patient may be prohibited by an employer from
performing any task which the employer deems life-
threatening, to either the employee or any of the employees
of the employer, while under the influence of medical
marijuana. The prohibition shall not be deemed an adverse
employment decision even if the prohibition results in
financial harm for the patient.
(4) A patient may be prohibited by an employer from
performing any duty which could result in a public health or
safety risk while under the influence of medical marijuana.
The prohibition shall not be deemed an adverse employment
decision even if the prohibition results in financial harm
for the patient.]
Section 2103. Protections for patients and caregivers.
* * *
(b) Employment.--
(1) 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.
(2) Nothing in this act shall require an employer to
make any accommodation of the use of medical marijuana on the
property or premises of any place of employment. [This act
shall in no way limit an employer's ability to discipline an
employee for being under the influence of medical marijuana
in the workplace or for working while under the influence of
medical marijuana when the employee's conduct falls below the
standard of care normally accepted for that position.]
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(3) Nothing in this act shall require an employer to
commit or refuse to commit any act that would put the
employer or any person acting on its behalf in violation of
Federal law.
(4) An employer may require employees or job applicants
who have received a conditional offer of employment to submit
to a drug test, including a test for marijuana, for safety-
sensitive positions. An employer may make an adverse
employment decision against an employee or job applicant who
has provided an adulterated or substituted testing sample or
has refused to submit to a lawful drug test required by an
employer.
(5) An employer or entity that provides employment
services or information may indicate that a job position is
safety sensitive and the job position's application process
or the job may require a drug test.
(6) An employer may require an employee or job applicant
who has received a conditional employment offer to disclose
and produce a valid identification card if the employee's
position, or the position for which the job applicant is
applying, is a safety-sensitive position. An employer may
make an adverse employment decision against an employee or
job applicant who fails to disclose and produce a valid
identification card as provided under this act, and the
employer shall not be in violation of paragraph (1).
(7) An employer may make an adverse employment decision
against an employee or job applicant who discloses and
produces a valid identification card or who uses medical
marijuana if the employee's position, or the position for
which the job applicant is applying, is a safety-sensitive
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position, and the employer shall not be in violation of
paragraph (1), provided that the employer has engaged in an
interactive process with the employee or applicant to
evaluate the individual's ability to perform the essential
functions of the position with or without reasonable
accommodation.
(8) An employer may make an adverse employment decision
against an employee if the employee's use of medical
marijuana decreases or lessens the employee's job performance
or ability to perform the employee's job duties, and the
employer shall not be in violation of paragraph (1), provided
that the employer has engaged in an interactive process with
the employee or applicant to evaluate the individual's
ability to perform the essential functions of the position
with or without reasonable accommodation.
(9) Nothing in this section shall be construed to
invalidate or void any rights, benefits or procedures
afforded to an employee pursuant to an existing collective
bargaining agreement.
(10) Nothing in this section shall be construed to
create or permit a cause of action for an employee or job
applicant against an employer for:
(i) A ny claim that arises following an employee's or
job applicant's noncompliance with this section and which
the employee or job applicant may have prevented the
claim had they complied.
(ii) Actions taken pursuant to an employer's lawful
workplace drug policy, including, but not limited to,
subjecting an employee or job applicant to a lawful drug
and alcohol test, lawful and nondiscriminatory random
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drug test and discipline, termination of employment or
withdrawal of a job offer after a failure of a drug test.
(iii) Actions based on the employer's good faith
belief that an employee used or possessed medical
marijuana in the employer's workplace or while performing
the employee's job duties or while on call in violation
of the employer's lawful employment policies.
(iv) Actions based on the employer's good faith
belief that an employee was impaired as a result of the
use of medical marijuana, under the influence of medical
marijuana while at the employer's workplace, under the
influence while performing the employee's job duties or
under the influence while on call in violation of the
employer's lawful workplace drug policy.
(11) If an employer makes an adverse employment decision
against an employee or job applicant under this act, the
employee or job applicant may not challenge the adverse
employment decision under any other State or local law.
* * *
Section 3. The act is amended by adding a section to read:
Section 2109.1. Enforcement and civil actions.
(a) Regulations.--The Secretary of Labor and Industry shall
promulgate regulations necessary to enforce section 2103(b).
(b) Civil action.--A complainant may only bring a civil
action after all administrative remedies are exhausted.
Section 4. This act shall take effect in 60 days.
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