A recent case out of Pennsylvania serves as a good reminder that even in states where medical marijuana is legal, individuals cannot “self-prescribe” and then seek to claim protections that might be available to properly registered medical marijuana users.

In this case, the employee applied for and was granted leave under the Family Medical Leave Act (FMLA) in order to undergo and recover from foot surgery. Several months after returning from leave, the employee was selected for a random drug test in accordance with the employee’s drug testing policy, and tested positive for marijuana. Based on this positive test, the employer placed the employee into a drug assistance program, after which the employee returned to work and participated in a “fact-finding” hearing with the employer to determine if there was a legitimate explanation for the positive drug test.

At the hearing, the employee admitted that he was using marijuana he obtained on his own to treat pain from his foot condition. He testified that he had consulted with a doctor in Delaware regarding a certification for medical marijuana, but did not receive a certification or recommendation from the Delaware doctor to use marijuana. He also admitted that he was not certified to use medical marijuana in Pennsylvania and had not consulted a Pennsylvania doctor about medical marijuana use.

After the fact-finding hearing, the employee was terminated for failing the drug test, which was consistent with the employer’s drug testing policy. The court granted the employer’s motion for summary judgment and dismissed the employee’s claims that his termination was the result of disability discrimination and/or retaliation.

The Takeaway – This case should ultimately be read as a disability discrimination decision. In fact, neither the employee nor the Court raised the Pennsylvania Medical Marijuana Act as a defense or explanation for the employee’s positive drug test. But it does offer an important lesson for employees, employers, and businesses as more states legalize medical marijuana.

Even though medical marijuana may be “legal” in your state, nearly all states experience an extended period of time between legalization and full implementation. For example, Pennsylvania passed the Medical Marijuana Act in April 2016, and it was not until almost two years later (February 2018) that the first registered patients received medical marijuana from licensed dispensaries. Furthermore, even when a state’s medical marijuana program is fully implemented, only those individuals who are properly certified under the state’s program can legally use medical marijuana, and must do so as it is recommended to them by their doctor.

Since marijuana is still classified as a Schedule 1 controlled substance under the federal Controlled Substance Act, medical marijuana users (and business operating in the medical marijuana industry) must comply with all provisions of a State’s medical marijuana program in order to receive any rights or protections granted by that law.

A link to the Court’s full decision can be found here.

Joseph McNelis works in Fox Rothschild’s Blue Bell, PA office and focuses his practice on labor and employment matters. Joe also tracks legal developments in the cannabis industry in Pennsylvania and nationwide. Joe can be contacted at 610-397-2332 or jmcnelis@foxrothschild.com.