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8 PA TownshipNews FEBRUARY 2020

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FEBRUARY 2020 PA TownshipNews 9

IN 2016, PENNSYLVANIA BECAME THE 24th STATE TO LEGALIZE MARIJUANA for medical use. In the four years since then, the infrastructure has been implemented to start growing, processing, and selling medical cannabis to hundreds of thousands of patients with serious medical conditions. As this new industry continues to take root, here’s a look at what townships need to know now about medical marijuana.

Medical Marijuana TOUCHES TOWNSHIPS through LAND USE, PUBLIC SAFETY, and EMPLOYMENTBY AMY BOBB / ASSISTANT EDITOR

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wo winters ago, Pennsylvania’s first medical marijuana crop was har-vested in Pine Creek Township, Jefferson County.

“We are making history,” Beth Bittner, the director of communications and outreach for Cresco Yeltrah, the medical cannabis company that produced the crop, told the Brookville Area Chamber of Commerce at the time. It was remarkable news, indeed, given that Pennsylva-nia’s venture into legalizing medical marijuana was not even two years old. On April 17, 2016, Gov. Tom Wolf signed into law Act 16, the Medical Marijuana Act, making Pennsylvania the 24th state in the nation to legalize marijuana for medi-cal use. Since then, 20 growers and processors across the state have become operational, with 14 of them currently shipping products, and 75 dispensaries are now open and selling cannabis products to close to 158,000 patients with active certifications. (See the box at right for more statistics about Pennsylvania’s program.)

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PHOTO COURTESY OF TERRAPIN CARE STATION, COLORADO.

In the meantime, the program continues to be expand-ed. Six additional illnesses, including opioid use disorder as well as anxiety, have been added to the list of serious medical conditions eligible for medical marijuana, and after an initial ban, dried leaf became an acceptable product in 2018. As demand for medical marijuana has grown over the past two years, the leaf form has helped to get products into patients’ hands more quickly and at a lower cost. Without a doubt, medical marijuana has become big business in Pennsylvania. By the end of 2019, sales had totaled nearly $610 million. Last year, the industry grew by 280%, according to Marijuana Business Daily. This growth has brought jobs and revenue to the state, including in townships where some of the facilities growing, processing, and selling medical marijuana are located. As medical cannabis continues to become more deeply rooted in the commonwealth, townships have been pulled into this new realm in their roles as local land regulators, public protectors, and employers. “Whether it’s hosting a facility or working through is-sues associated with an employee possessing a medical marijuana card, townships are finding themselves on the frontline of this issue,” PSATS Education Director and Counsel Scott Coburn says. “It’s important, therefore, that they stay abreast of the latest happenings and what to do to comply with the law while also protecting themselves, their employees, and the public.” It begins by understanding Pennsylvania’s medical marijuana program and then addressing potential land use, public safety, and employment issues arising within this evolving cannabis climate.

Gaining momentum Since 1996 when first approved for medical use in Cali-fornia, cannabis continues to find acceptance across the nation even as the federal government still considers it an illegal substance. The U.S. Drug Enforcement Administra-tion lists marijuana as a Schedule 1 drug, the same as heroin, LSD, and ecstasy. [Later in the article, we will explore how this affects workers with a commercial driver’s license (CDL), who must comply with federal drug-testing regulations prohibiting marijuana use.] So far, the federal government has taken a mostly hands-off approach to marijuana-friendly state laws despite the Trump Administration adopting a tougher line on the issue in 2018. Then-Attorney General Jeff Sessions rescinded an Obama-era directive for federal prosecutors not to interfere with states’ legalization efforts. In the meantime, the use of medical and recreational marijuana has only expanded across the nation. Pennsylva-nia is one of 33 states, along with the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands, to legal-

QUICK FACTSPA’s medical marijuana program continues to grow In the four years since Pennsylvania legalized medical marijuana, a lot has happened. Here’s a rundown of the latest statistics and news from the state Department of Health, which regulates the medical cannabis program: • Permits have been issued geographically across the state to 25 medical marijuana growers/processors, the maximum allowed by law. The department reports that 20 facilities are operational and 14 are shipping products. The rest are gearing up to begin shipping or become operational. • Permits have been distributed to 50 medical marijuana dispensaries, the maximum allowed by law. Each permit holder may operate up to three locations, providing the potential for 150 dispensaries across the state. Currently, 75 are open and dispensing products. • Roughly 243,500 patients have registered to be part of the program; approximately 158,000 hold active certifications. • About 60 percent of demand for medical marijuana comes from patients with pain, cancer, and neuropathies. Anxi-ety, which saw a surge when it was approved as a medical con-dition in 2019, has plateaued and now accounts for less than 10 percent of patients. • Close to 1,300 practitioners have been approved to cer-tify medical marijuana as treatment for medical conditions. • Total sales statewide have topped nearly $610 million. About 65,000 patient visits are made to dispensaries each week with the average purchase around $120. • Through either petitions to or recommendations by the state Medical Marijuana Advisory Board, the list of serious medical conditions eligible for marijuana has expanded from the 17 originally in the law to 23 today, including the addition of opioid use disorder in 2018 and anxiety disorders and Tourette syndrome in 2019. • In 2018, dried leaf was added to the list of approved products, which also includes pills, oils, tinctures, ointments, and concentrates for vaping. While medical marijuana may be vaporized, it cannot be smoked under the law. Edibles, such as food or gummies, may also not be purchased, although pa-tients may bake medical marijuana into their own food.



MEDICALMEDICALMARIJUANAMARIJUANA

ize medical marijuana. In addition, 11 states have made recreational marijuana legal over the past seven years. (See the article on page 14 for more about the na-tion’s growing public acceptance of mari-juana.) Building a medical marijuana pro-gram from the ground up takes a lot of effort. Following passage of Pennsylva-nia’s Medical Marijuana Act in 2016, the commonwealth was given a tight dead-line to transform the legislation into a statewide program with the infrastruc-ture in place to treat Pennsylvanians suf-fering from serious medical conditions, ranging from autism and epilepsy to cancer and post-traumatic stress disorder. “Beginning a program from scratch and working to make it the best avail-able for those with serious medical conditions requires a lot of work,” says Nate Wardle, press secretary for the state Department of Health, the agency tasked with developing the program. The department wasted little time creating a framework and conven-ing the Medical Marijuana Advisory Board. Over the first two years, it issued permits to 25 growers and processors and 50 dispensaries across the state, all

part of a massive undertaking to meet the growing consumer demand for medical marijuana. Since the program kicked off in early 2018, nearly 244,000 patients have registered, approximately 2.5 million visits have been made to dispensaries, and around 6.5 million products have been purchased. “The department is proud of the work the program has done to ensure hundreds of thousands of individuals with serious medical conditions have access to this medication,” Wardle says. As soon as medical marijuana be-came legal, townships recognized that they could potentially play host to the industry. PSATS urged townships to examine their zoning ordinances to address this new permitted land use. “Because growing/processing and dispensing facilities are now a state-rec-ognized use, townships must allow for them,” PSATS’ Coburn says. “As with all other uses, townships must provide for them within their borders and can-not discriminate by applying different standards.” The law includes rules to protect com-munities — for example, growers/proces-sors and dispensaries must show that they have satisfied any local zoning require-ments — but municipalities may not

impose tougher restrictions than what is required of other industrial or commer-cial endeavors within those zones. Townships with zoning must figure out where it makes the most sense to locate these facilities and then adopt appropriate changes to their ordi-nances. For example, Coburn says, do changes need to be made to your requirements so you’re not discriminat-ing against medical marijuana facilities in favor of other existing similar uses? While townships may regulate buffers, setbacks, building size, parking, lighting, and signage, they cannot regulate hours of operation, security, or access. In 2017, Richland Township in Al-legheny County decided to take a pro-active stance — despite no applications on the horizon — and passed an ordi-nance that restricts medical marijuana facilities to certain zoning districts: dispensaries to its community commer-cial zone and growers/processors to its restricted light industrial district. “We’re not interested in fighting in court, so it’s important that we’re pre-pared,” supervisor George Allen told the Pittsburgh Tribune-Review at the time. “We don’t want a marijuana store just plopping down anywhere.” According to the Department of Health, the state has now issued all permits for growers/processors and dis-pensaries currently allowed by the law outside those made available as part of the research component of the pro-gram. However, that doesn’t mean that communities are immune from hosting such facilities in the future. Because each dispensary permit holder may op-erate up to three locations, dozens more dispensaries could be sited and opened for business. Also, if the demand for medical marijuana outpaces supply, the state could conceivably green light ad-ditional growing/processing and dispen-sary permits. “The Department of Health could decide to issue another round of permits, or sites could close and facilities lose their permits,” says Jonathan Andrews,

“The siting of these facilities should still remain a relevant issue for municipalities.”

Township zoning ordinances should accommodate

medical marijuana fa-cilities now that they

are a state-recog-nized land use.

a real estate attorney with McNees Wal-lace & Nurick in Harrisburg. “The sit-ing of these facilities should still remain a relevant issue for municipalities.” Townships that haven’t yet done so are urged to make sure their zoning or-dinances accommodate growers/proces-sors and dispensaries somewhere within their borders. If not, they run the risk of facing legal challenges, Andrews says. “You’re better off taking the time now to expressly permit their use where you

want them to be located and to have appropriate standards in place,” he says.

Protecting public safety When Cresco Yeltrah decided to come to Jefferson County to grow and process medical marijuana, local officials had questions about the fledgling industry. “At first, we had some unknowns that we wanted answers to,” recalls Don Pangallo, a supervisor in Pine Creek Township, where the facility is now located. “Company representatives met with us to put everything out in the open about their operations and what they were planning to do there.” Comforted to hear that the cannabis plants would be grown and processed in an enclosed, secured, indoor facility and

the operation would be closely regulated by the state, township and county of-ficials welcomed the new business. “Once the state made it legal, there was nothing we could do,” Pangallo says. “We decided to be open-minded, and we were interested in seeing an old carbon plant that had sat vacant for years be put to new use providing jobs to the area.” Although the township has no zoning, the company still had to seek local permits and inspection approvals for renovations and additions to the property. Now that the facility is up and running, the township is turning its attention to emergency response. “We haven’t had an opportunity to get in and set up emergency plans yet,

Marijuana, cannabis, weed, pot. No matter what you call it, this mind-altering substance — long associated in the United States with the counterculture and fringes of society — has made its way out of the shadows and into mainstream America. In Pennsylvania, it took a group of con-cerned parents, legislators, and others advocating the plant’s medicinal qualities to

educate and build bipartisan support for legalizing medical marijuana. The fact that only seven lawmakers voted against the measure when it passed in 2016 shows how attitudes about marijuana have been changing.

The rise in recreational use Support of marijuana for recreational adult use has also been gaining momentum across the nation. About two-thirds of Americans say the use of marijuana should be legal, according to a 2019 poll by the Pew Research Center. The share of U.S. adults who oppose legalization has fallen from 52% in 2010 to 32% today. This changing attitude is reflected in the growing number of states legalizing recre-ational marijuana since 2012, when Colorado and Washing-ton were the first. On January 1, 2020, Illinois became the 11th state to legalize the plant’s sale and use for adults. Pennsylvania, too, has begun the debate. Between Feb-ruary and May last year, Lt. Gov. John Fetterman visited all 67 counties on a statewide listening tour to hear Pennsylva-nians’ opinions about legalizing adult-use recreational mari-juana. He reported that by a show of hands, 65% to 70% of attendees approved of adult-use cannabis legalization, including near-unanimous support for decriminalization and mass expungement of nonviolent and small cannabis-relat-ed offenses. A poll released last year by Franklin & Marshall College revealed that 59% of Pennsylvania voters support

legalizing recreational marijuana, up from 22% in 2006. In September, Gov. Tom Wolf called on the General As-sembly to begin serious debate on legalizing regulated rec-reational marijuana for adults. He also asked for legislation to eliminate criminal charges for nonviolent acts involving small amounts of cannabis and expunge the records of those previously convicted. Bills to make recreational cannabis legal have been in-troduced in both the House and Senate. However, House Republican leaders have said they had no plans or interest in legalizing recreational marijuana, especially given that the drug is still classified as a Schedule 1 narcotic by the federal government. They point to the opioid epidemic, the infancy of the medical marijuana program, and other seri-ous issues facing the state as reasons for not discussing recreational marijuana legalization right now. Federal legalization seems unlikely at this point, too, even though proposals to loosen the laws surrounding mari-juana as an illegal drug have seen some move-ment. The U.S. House passed a bill in Septem-ber to protect banks that partner with can-nabis businesses, and a legislative proposal to legalize marijuana and remove it from Sched-

The growing public acceptance of marijuana



but we are working on it,” says Pangallo, who also serves as fire chief. In Berks County, Jared Renshaw, the fire commissioner for the Western Berks Fire Department, had previously worked with the medical marijuana industry while serving as a firefighter in Califor-nia for two years. He figured this experi-ence would be useful after a marijuana grower and processor announced it was building a facility in South Heidelberg Township. “It can be a scary thing at first,” Renshaw says. “It’s a new industry, which means there’s a lot to learn, but I think it’s important to embrace it, build relationships, and treat it like any other commercial development.” He recommends townships hosting a

site do their homework to become familiar with terminology and get up to speed on industry practices. Then, have key players, including the company, the township, the fire department, and the police, sit down to talk and develop relationships. “Ask questions, such as how the THC [the active ingredient in mari-juana] is extracted and what chemicals are involved,” he says. “Build commu-nication and rapport so you can call anytime with questions.” Because the facilities are highly

secured with exterior fencing, cameras, guards, and controlled entry, access dur-ing an emergency could be a challenge. Just as with any commercial property, Renshaw recommends that emergency responders conduct annual site visits where they walk through the property, talk with staff, learn who to call in an emergency, and find out what chemicals are kept on site and where the gas and electric shut-offs are located. These upfront efforts can go a long way in easing concerns that commonly

“We understand that legalization of medical cannabis is a complex issue with public safety concerns.”

ule 1 of the U.S. Controlled Substances Act was approved by the House Judiciary Committee in November.

Decriminalizing marijuana In the meantime, there has been a push to decriminalize marijuana and reduce the stigma that possession misde-meanors may have on a person’s employment, education, and housing prospects. Last year, Pennsylvania became the first state in the nation to implement a Clean Slate Law, in which an automated computer process will seal legal re-cords in low-level offenses, such as misdemeanor marijuana use or possession, as long as the affected individuals have paid their fines and not been convicted of a nonviolent crime for the past 10 years. Several Pennsylvania municipalities, ranging from Phila-delphia to Lancaster to State College, have also passed ordi-nances reducing the penalty for possessing a small amount of marijuana to a summary offense, the same as a traffic violation, instead of the more consequential misdemeanor charge, in which maximum penalties could include up to 30 days in jail. Last March, Manor Township in Lancaster County adopt-ed an ordinance that allows a first-time offense of less than 30 grams of marijuana to be treated as a non-traffic viola-tion. The police department had recommended the change to provide officers with a more effective tool for curbing drug usage and possession in the township. “The police were spending a lot of time, upwards of two to three hours, preparing paperwork and then taking a case to the district magistrate’s court,” manager J. Ryan Strohecker says. “Most of the time, the defendants would hire an attor-ney who got them off anyway.” Now instead of a misdemeanor, police can charge a first-time offender possessing or using a small amount of mari-juana or paraphernalia for personal use with a summary cita-

tion, much like a traffic violation, in which the person would be fined between $300 and $500. Any subsequent offenses by that person would be charged as a misdemeanor. “The fines are hefty,” Strohecker says. “We designed them to be higher to show that we were not going easy on marijuana possession.” Rather than requiring a hearing, a non-traffic summary citation involves handing out or mailing a summons, which the offender would return with a guilty plea and a check. Under the ordinance, a judge could reduce the fine of a first-time of-fense to $75 and impose community service and attendance at a court-mandated drug awareness and prevention program. Because police now have a less burdensome option for punishing first-time marijuana offenders, the township is hoping to see a rise in the number of citations issued while also freeing up officers’ time to spend more of it on the streets instead of bogged down with misdemeanor paper-work and hearings. As the one-year anniversary of the ordinance approach-es, the township is looking forward to a report with numbers analyzing the ordinance’s effec-tiveness. “We hope it has significantly increased the number of charges and will act as a deterrent to using marijuana in the township,” Strohecker says. Summary Citation

Several municipalities have reduced the penalty for possessing a small amount of marijuana to a summary citation, simi-lar to a traffic violation.



arise when a new operation comes to town, Renshaw says. “A lot of other industries scare me more than this one,” he says. “It’s very controlled, and there are a ton of safety regulations in place.”

A welcome neighbor In the two years since medical mari-juana sales have begun, Pennsylvania has experienced relatively few hiccups given the rapid growth of the industry. A couple of growers/processors have been embroiled in controversy — the state revoked the permit of one after inspectors found production and se-curity violations — and some growers have taken longer than anticipated to start shipping products. Supplies for the nascent industry have not always kept pace with demand, but the Department of Health says that such shortages tend to be temporary, caused when new medical marijuana dispensaries open and order a full inventory at once. “As more growers/processors become operational, we do not anticipate short-ages moving forward,” Wardle says. Despite a few growing pains, things have been relatively quiet in communities where facilities have been built. In fact, many of the businesses have come to be viewed as good neighbors and employers. “The growers have been very sensi-tive that the industry is new to Pennsyl-vania and that people are nervous about it,” Andrews of McNees Wallace & Nurick says. “They are taking the time to educate and perform outreach both to township officials and neighbors so that people understand that their facilities will not look any different from other typical industrial or commercial use.” It helps, too, that these new busi-nesses are boosting the local economy

by providing a wide range of jobs and revitalizing properties that may have sat vacant for years. In Clinton County, grower/processor Terrapin Care Station has set up shop in a renovated industrial warehouse where modular homes were once built in Pine Creek Township. “It’s been a positive experience. We’ve had no issues whatsoever,” town-ship secretary Darlene Macklem says. “They appear to be a well-run operation and a good employer providing well-paying jobs.” Since coming to the township in 2017, the grower/processor has created nearly 60 full-time jobs, ranging from operations and production to sales and information technology. The company anticipates doubling its workforce over the next 18 months as it prepares to expand the facility to meet increased patient demand, according to Peter Marcus, communications director of Terrapin Care Station. When it comes to getting a handle on this new industry and such critical issues as safety and security, Pine Creek Township police chief and zoning of-ficer Dave Winkleman says it’s been a learning process for local emergency responders. “It’s a unique facility in that the building is very secure, and there are only a few ways in and out,” he says. “It’s a concern. For us to deal with an emer-gency, we have to be sure we can gain access, know where things are located, and still keep the building secure.” Recently, company officials hosted an open forum for local police and fire officials to tour the facility. The visit helped to familiarize emergency re-sponders with the building, its entrances and exits, and potential trouble areas. The company has also agreed to add a township police officer to its safety com-

mittee, which Winkleman says will help ensure the township has a voice when it comes to decisions affecting safety. “We understand that legalization of medical cannabis is a complex issue with public safety concerns,” Marcus says. “Terrapin takes a proactive ap-proach by establishing partnerships with local agencies, such as code en-forcement, building inspection, fire, and zoning, to help address these chal-lenges.” With the industry so new to the state, Winkleman has appreciated the company’s open communication in dealing with the community. So far, he says, public response has been relatively quiet. “Really, from the outside, you wouldn’t even know they are there,” he says. The only feedback he’s heard so far have been a few complaints about an odor, which Terrapin acknowledges occurs during harvest when the plants are broken down and the terpenes, or essential plant oils, are agitated. “The smell will not cause anyone to get intoxicated or fail a drug test,” Marcus says. Still, the company takes the com-plaints seriously and has been working with neighbors to alleviate the problem, as well as researching, developing, and investing in technology that will reduce the odor. “Working in a sensitive new industry such as medical cannabis, we feel a re-sponsibility to go above and beyond to rethink how industry can better work with the community,” he says.

Ready in the workplace Now that Pennsylvania’s medical marijuana infrastructure is up and running, cannabis has been making its way into the hands of hundreds of


“It’s a new industry, which means there’s a lot to learn, but I think it’s important to embrace it, build relationships, and treat it like any other commercial development.”

“Medical marijuana could theoretically affect any and all townships through employment issues.”


thousands of Pennsylvanians with seri-ous medical conditions. With approxi-mately 244,000 registered patients as of the end of 2019, what impact could this have in the workplace? “Medical marijuana could theo-retically affect any and all townships through employment issues,” PSATS’ Coburn says. “Just keep in mind that the law is relatively new, and we may not have all the answers yet, especially when it comes to employment.” Many issues, particularly employer requirements, are still getting sorted out in the courts. Early last year, a court in Arizona, which has a similar medical marijuana law as Pennsylvania, granted summary judgment to an employee fired after testing positive for marijuana because the employer did not prove that the worker was impaired while on the job. In a Pennsylvania case filed last October, an Allegheny County court will decide whether a company could rescind a job offer to an applicant with a medical marijuana card who tested positive for the drug. “In the workplace, there are still a

CHECKLISTWhat townships should do now that medical marijuana is legal

lot of unanswered questions,” Adam Santucci, an attorney with McNees Wallace & Nurick, says. He recommends that townships rely on what is currently known about employment law to make appropriate decisions when it comes to medical marijuana and employees. “There are things townships should think about now before they are con-

Adjust any zoning ordinances to allow for medical marijuana uses in the appropriate zones. Be sure these new uses are consistent

with your township’s comprehensive plan. PSATS has sample language that can be adopted or modified as appropriate to incorporate into a township’s zoning ordinance. The document can be found at connect.psats.org. After signing in, click on “Resource Center” under the “Resources, Programs & Services” tab and then “Ordinances.” Scroll down to the “Medical Marijuana Sam-ple Ordinance Provisions.”

Consult with your solicitor about updat-ing employment policies to comply with Pennsylvania’s Medical Marijuana Act.

Keep in mind that because marijuana is illegal under federal law, CDL drivers and police officers, who are governed by federal regulations, are prohibited from using medical marijuana.

Become educated about medical mari-juana and what it means to your township. At the PSATS 2020 Conference in Hershey in

May, Adam Santucci of McNees Wallace & Nurick will pres-ent the workshop, “An Employee Shows Up with a Medical Marijuana Card. Now What?” This session explores the ef-fect of marijuana legalization and decriminalization on em-ployment. To register for the conference, go to conference.psats.org. Two on-demand webinars offered by PSATS also explore medical marijuana issues: 1) Weed Better Talk: Understanding the Impact of

Medical Marijuana in the Workplace — Attorneys from the Pillar+Aught law firm discuss what municipal employ-ees and employers can and cannot do when it comes to medical marijuana in the workplace. 2) Is Your Fire Department Ready for Medical Mari-juana? — Jared Renshaw of the Western Berks Fire De-partment provides an overview of the medical marijuana industry and what fire departments should do to prepare, including what they may encounter during an emergency at a growing and processing facility. To access these webinars, go to learn.psats.org and look for them under “On-Demand Webinars.”

Get your supervisory staff trained in mar-ijuana awareness and employment issues. Various law firms, employee assistance pro-

grams, hospitals, visiting nurse associations, and drug and alcohol facilities offer relevant training for employees. PSATS’ CDL Program also provides probable cause train-ing, which although geared to CDL supervisory personnel, would be appropriate for all supervisory staff and equip-ment operators to take to learn how to recognize and know what to do if an employee is suspected of being under the influence of drugs or alcohol while on the job. The training also provides tips on how to better prepare your township for medical marijuana in the workplace. The PSATS CDL Program will be offering a round of probable cause training at 10 locations around the state this year. The sessions will be held from 9 a.m. to noon on dates starting in March and running through October. To find out more, go to learn.psats.org, click on “Classroom,” and then look for them under the “Public Safety” category.


fronted with an issue and are left scram-bling to figure out how to deal with it,” Coburn agrees. Here’s some advice to keep in mind when navigating medical marijuana in the workplace: • Do not discriminate. Townships cannot fire, threaten, refuse to hire, discriminate, or retaliate against anyone solely on the basis that the person is certified to use medical marijuana. The law creates a new protected classification for medical marijuana users, much like age, race, gender, and national origin, says John Martin, an attorney with the Harrisburg-based law firm Pillar+Aught, who presented a

PSATS webinar on medical marijuana and employment issues in November. “Medical marijuana ID cardholder status is now considered a protected classification under Pennsylvania law,” he says, “because an employer cannot make an employment decision based on that person’s status as a cardholder.” Keep in mind that while the federal Americans with Disabilities Act (ADA) and Pennsylvania’s Human Relations Act require employers to accommodate individuals with disabilities, the courts are still deciding what this means for patients using medical marijuana, which is still illegal under federal law. “If someone’s underlying medical



condition meets the definition of dis-ability, then the employer may have an obligation to accommodate their medi-cal issue,” Santucci says. He acknowl-edges that the most likely accommoda-tion would be to not apply a drug and alcohol testing policy to an individual with a medical marijuana card. (This does not apply to CDL drivers, who are required by federal law to be tested.) “That means you can still prohibit employees from performing work while under the influence or showing up to work high,” he says, “but if they test positive and you go to fire them because of a zero-tolerance policy, you may very well have to accommodate a certified medical marijuana cardholder by not applying the policy and not firing that person for legal drug use outside the workplace.” • Understand that CDL workers and police officers are treated differ-ently under federal law. Pennsylvania’s Medical Marijuana Act has an escape hatch [Section 2013(b)(3)] that allows an employer to not follow the law if doing so would put it in violation of federal law. Because marijuana remains illegal under federal law and both CDL drivers and police are governed by fed-eral regulations, policies may prohibit these employees from being medical marijuana users. “Pennsylvania’s medical marijuana law doesn’t trump the federal prohibi-tion of the use of marijuana,” Martin says. In fact, the federal government has issued specific directives that ban medi-cal marijuana use for both CDL drivers and police officers. The U.S. Depart-ment of Transportation has consistently released statements making it clear that employees in safety-sensitive jobs, of which CDL drivers comprise the big-gest chunk, are prohibited from using medical marijuana. Last year, citing federal guidance that a person using a controlled substance may not possess a firearm, Pennsylvania’s Municipal Police Officers’ Education and Training Commission, which certifies municipal police officers, adopted a policy that officers may not use medical marijuana or possess a medical marijuana card. “An employer can never be put in the position where they are breaking a


federal law,” Martin says, “so if a federal law prohibits marijuana as it relates to employment, then the employer must follow the federal law.” • Recognize that employees cannot be under the influence at work. Un-

der the state’s Medical Marijuana Act, townships do not have to accommodate an employee’s use of medical marijuana while working or allow them to work while under the influence. “While you can’t discriminate on the basis of an employee having a medi-cal marijuana card, that card doesn’t give the employee the license to be un-der the influence at work,” Coburn says. The act specifically states that em-ployees certified to use medical marijua-na may not perform certain tasks while

under the influence, including handling chemicals requiring state or federal permits; working with high-voltage electricity or other public utilities; work-ing at heights or in confined spaces; or working in any setting deemed by the employer to be “life-threatening.” Furthermore, employers may disci-pline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence when the employee’s conduct falls below the standard of care normally accepted for that position. Martin counsels townships to err on the side of safety, especially when it comes to operating equipment and other potentially dangerous tasks. “If a person is doing medical mari-juana after hours, it cannot impair their job,” he says. “Think of it like alcohol. What if someone drinks before coming in to work?” He suggests townships fold medical marijuana into an existing policy, such as prohibiting alcohol or drug use before and during work hours. “An employer can say no one can be under the influence at work and don’t get high before coming to work,” he says. • Decide how to determine if someone is under the influence. The law does not spell out how employers must prove that an employee’s work performance fell below a reasonable standard of care because of being under the influence of medical marijuana. It is also unclear how employers can de-termine whether an employee is “under the influence” of marijuana while at work. “The employer may have to make a determination of what is considered under the influence,” Martin says. He suggests that it be more than a drug test since marijuana can stay in a person’s system for up to a month. Townships should document any first-hand visual observation by a supervisor of an employee showing telltale signs of impairment, such as being excessively sluggish, lethargic, or giggly. “You have to have that reasonable suspicion document available for the employer to say we were able to docu-ment, confirm, and verify that this per-son was operating or acting under the influence,” Martin says. ➤


THE LATEST

Is CBD oil safe? Cannabidiol, or CBD, has exploded as a popu-lar natural remedy in recent years. CBD, which is extracted from the cannabis plant and often diluted with coconut or hemp seed oil, has been touted as a means of relieving pain and other symptoms without the mind-altering effects of marijuana. While chemically similar to tetrahy-drocannabinol, or THC, which causes the “high” sensation associated with marijuana, CBD does not have the same psychoactive effects. Recently, the U.S. Food and Drug Administra-tion (FDA) has expressed concern about the many CBD products flooding the consumer mar-ket. In late November, it updated a consumer advisory to say that while the compound, which is derived from marijuana or hemp, does not cause a high, it still has the potential to cause harm. Some of the CBD products on the market, in fact, are illegal. “Aside from one prescription drug approved to treat two pediatric epilepsy disorders, these products have not been approved by the FDA,” Amy Abernethy, the agency’s princi-pal deputy commissioner, says, “and we want to be clear

that a number of questions remain about CBD’s safety — in-cluding reports of products containing contaminants, such as pesticides and heavy metals — and there are real risks that need to be considered.” CBD can be extracted from both hemp and marijuana plants. Although hemp has no detectable THC, the CBD compound taken from marijuana can provide a detectable level. Therefore, CBD products could contain more THC than the label claims. “Because CBD is not regulated, there is no way to know what’s in it,” says James Wheeler, manager of PSATS’ CDL Program. “Using a product with CBD could, in fact, cause a positive drug test for THC.” He advises CDL drivers and anyone concerned about positive results on a drug test to stay away from CBD prod-ucts, along with marijuana and other illegal drugs. “You can’t trust what’s in CBD products, so why take the risk?” he says.

What about hemp? Hemp, from which much CBD oil is derived, was among the first cultivated crops in human history, and it is known for thousands of uses from fiber to tex-tiles to food. Hemp recently became le-gal to grow and use in the United States again after decades of policies hindered farmers from growing it because of the plant’s familial relationship to marijuana and a lack of understanding about the plants’ differences. The 2018 U.S. Farm Bill removed hemp from the Controlled Substances Act, allowing farmers to grow, process, and sell it. Hemp, which must contain less than 0.3% THC, was also legalized nationwide for any use, including the extraction of CBD oil. In fact, Hemp Grower magazine estimates that more than 95% of hemp farmers grow it for CBD. For the first time in 80 years, Pennsylvania is once again harvesting commercial hemp. During the 2019 season, a324 permit holders across the commonwealth planted and grew approximately 4,000 acres of hemp. Unlike medical marijuana, which is administered by the state Department of Health and grown indoors at a permitted growing/process-ing facility, the hemp crop is regulated by the state Depart-ment of Agriculture and may be planted outdoors in fields.

NEWS

Unlike medical marijuana, hemp in Pennsylvania can be grown outdoors in fields.


If a township has documented evi-dence and is consistent in its enforce-ment, it should be in a good position to defend a termination. Although employ-ment cases surrounding medical mari-juana are still relatively untested in the courts, he says, “You have to be willing to put your flag in the sand and say, ‘This is what we are doing to ensure the safety of our citizens and our employees.’ ” • Consult with your solicitor on drug-related employment policies. Townships should review with legal counsel their employment policies, including drug and alcohol testing, to make sure they are consistent with the Medical Marijuana Act’s requirements. They should also check with their solicitor before refusing to hire, firing, changing the conditions of a job, or disciplining any employee with a medi-cal marijuana card. At the very least, employers should have a drug and alcohol policy in place that outlines the circumstances for testing and makes clear the penalties for violating it, whether it’s terminat-ing the employee or providing for counseling and retesting. Santucci recommends a policy that provides for pre-employment, post-accident, reason-able suspicion, and return-to-duty test-ing. (NOTE: CDL employees will need

a separate policy since they have required random testing, he says.) Just be sure that substance abuse policies are enforced consistently so that no one is singled out. Also, dis-seminate the policies to employees so they understand that testing positive for illegal drugs is a violation of township policy and subject to disciplinary action. • Train employees and front-line supervisors on employment policies and drug and alcohol awareness. Supervisory employees should be fa-miliar with township policies, be able to recognize the signs of impairment, and know what to do if they suspect an employee is under the influence. Vari-ous law firms, employee assistance pro-grams, hospitals, visiting nurse associa-tions, and drug and alcohol programs, including PSATS’ CDL Program, offer relevant training for employees. (See the box on page 18.) “Whoever administers the policy should know what to do if someone tests positive and claims they are a medical marijuana user,” Santucci says. “That’s where it can go sideways. Some may decide to fire the person, and that’s a rational decision. They just need to understand that firing that person without further discussion could lead to potential legal liability.”

He recommends following a specific interactive process once an applicant or employee indicates that he or she is a certified medical marijuana user. It starts by confirming that the person is indeed a certified cardholder. “You would be surprised how many say they are who aren’t,” Santucci says. Then, consider the township’s safety liability by getting a doctor’s release that the person can perform their job duties and will only use the medical marijuana outside of work hours. (NOTE: PSATS’ CDL Program has an employee disclosure of drug use form, which must be completed by an employee’s physician, that townships may want to use for non-CDL purposes, too. Go to cdl.psats.org to access the form.) Next, set ground rules so the town-ship and employee are on the same page when it comes to expectations. “Make it clear that your policies still apply,” Santucci says. “You want to make sure this person can show up to work not under the influence and be safe on the job.” The bottom line is: Don’t rush to judgment upon finding out an employee is a medical marijuana user. “Understand that there is a process to follow to ensure the employee’s rights are met and that the township can con-tinue to operate safely,” he says. F



Pennsylvania’s medical marijuana law doesn’t trump the federal prohibition of the use of the drug. Because federal regulations govern drivers with CDLs and police who possess firearms, these employees should not be medical marijuana users.

“An employer can say no one can be under the influence at work and don’t get high before coming to work.”

MARIJUANA REMAINS ILLEGAL UNDER FEDERAL LAW

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