Regular Session 2021-2022 Senate Bill 0749 P.N. 1584

PRIOR PRINTER'S NO. 893

PRINTER'S NO. 1584

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

No.

749

Session of

2021

INTRODUCED BY MENSCH, ARGALL, BARTOLOTTA, MARTIN, PITTMAN,

STEFANO, J. WARD, K. WARD, YAW AND YUDICHAK, JUNE 14, 2021

SENATOR BROOKS, HEALTH AND HUMAN SERVICES, AS AMENDED,

APRIL 12, 2022

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; and, in miscellaneous

provisions, further providing for insurers and for

protections for patients and caregivers and providing for

enforcement and civil actions.

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; AND, IN MISCELLANEOUS

PROVISIONS, FURTHER PROVIDING FOR PROTECTIONS FOR PATIENTS

AND CAREGIVERS.

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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

context clearly indicates otherwise:

* * *

"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 while under the influence of medical marijuana,

including, but not limited to:

(1) Duties performed at heights or in confined spaces,

including, but not limited to, mining.

(2) The operation of a motor vehicle, other vehicle,

safety-sensitive equipment, machinery or power tools.

(3) Repairing, maintaining or monitoring the performance

or operation of any equipment, machinery or manufacturing

process, the malfunction or disruption of which could result

in injury or property damage.

(4) Performing firefighting 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,

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treatment or transport of potentially volatile, flammable,

combustible materials, elements, chemicals or other highly

regulated component.

(7) Dispensing pharmaceuticals.

(8) A position that requires the employee to carry a

firearm.

(9) Direct patient care or direct child care.

* * *

"Under the influence." One or more of the following:

(1) A drug test pursuant to which it is determined that:

(i) the level of tetrahydrocannabinolic acid in an

employee's urine is equal to or greater than 15 nanograms

per milliliter; or

(ii) the employee has provided an adulterated or

substituted testing sample.

(2) An employer's good faith determination that an

employee is under the influence of marijuana based on

observable physical behavior or characteristics, provided

that the 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 2102 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:

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(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.

(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 2102. Insurers.

Nothing in this act shall be construed to require an insurer

or a health plan, whether paid for by Commonwealth funds or

private funds, to provide coverage for medical marijuana.

Additionally, notwithstanding any other provision of law, no

workers' compensation carrier, self-insured employer or other

insurer shall be required to provide coverage for or otherwise

reimburse the cost of medical marijuana.

Section 3. Section 2103(b)(2) and (3) of the act are amended

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and subsection (b) is amended by adding paragraphs to read:

Section 2103. Protections for patients and caregivers.

* * *

(b) Employment.--

* * *

(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.]

(3) Nothing in this act shall require an employer to

commit any act that would put the employer or any person

acting on its behalf in violation of Federal or State 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. 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's

application process or the job requires 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

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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

position, and the employer shall not be in violation of

paragraph (1).

(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).

(9) If an employee is under the influence at the time of

an otherwise work-related injury and is not certified to use

medical marijuana in accordance with this act, the injury

shall not be covered by the act of June 21, 1915 (P.L.736,

No.338), known as the Workers' Compensation Act.

(10) If an injured employee's employment is terminated

pursuant to this act and the employer proves that work would

have been available to the injured employee but for

employee's termination from employment, the injured worker

shall not be entitled to disability benefits under the

Workers' Compensation Act.

(11) An employer shall be granted relief from charges if

a former employee is granted unemployment compensation

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benefits because the employer could not accommodate the

employee's lawful use of medical marijuana.

(12) For purposes of the act of December 5, 1936 (1937,

Sp.Sess. 2, P.L.2897, No.1), known as the Unemployment

Compensation Law, it shall constitute conclusive evidence of

willful misconduct if an employee's separation from

employment was caused by medical marijuana use that violated

a lawful workplace policy or refusal to submit to a drug test

under this section.

(13) Nothing in this act shall be construed to create or

imply a cause of action for an employee or job applicant

against an employer for:

(i) Any claim that arises following an employee's or

job applicant's noncompliance with this section and which

may have been prevented had the employee or job applicant

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

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, including discipline or termination of

employment based on the employer's good faith belief that

an employee was impaired as a result of the use of

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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.

(14) If an employer makes an adverse employment decision

against an employee or job applicant under this act, the

adverse employment decision may not be challenged under any

other State or local law.

* * *

Section 4. 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 to enforce section 2103(b).

(b) Civil action.--A complainant may only bring a civil

action after all administrative remedies are exhausted.

Section 5. This act shall take effect in 60 days.

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

CONTEXT CLEARLY INDICATES OTHERWISE:

* * *

"ESSENTIAL FUNCTIONS." THE FUNDAMENTAL, NOT MARGINAL, DUTIES

OF A POSITION.

* * *

"IMPAIRMENT." AS FOLLOWS:

(1) SYMPTOMS OF BEING UNDER THE INFLUENCE OF MARIJUANA

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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 WHILE UNDER THE INFLUENCE OF MEDICAL MARIJUANA,

INCLUDING, BUT NOT LIMITED TO:

(1) DUTIES PERFORMED AT HEIGHTS OR IN CONFINED SPACES,

INCLUDING, BUT NOT LIMITED TO, MINING.

(2) THE OPERATION OF A MOTOR VEHICLE, OTHER VEHICLE,

EQUIPMENT, MACHINERY OR POWER TOOLS.

(3) REPAIRING, MAINTAINING OR MONITORING THE PERFORMANCE

OR OPERATION OF ANY EQUIPMENT, MACHINERY OR MANUFACTURING

PROCESS, THE MALFUNCTION OR DISRUPTION OF WHICH COULD RESULT

IN INJURY OR PROPERTY DAMAGE.

(4) PERFORMING FIREFIGHTING 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,

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TREATMENT OR TRANSPORT OF POTENTIALLY VOLATILE, FLAMMABLE,

COMBUSTIBLE MATERIALS, ELEMENTS, CHEMICALS OR OTHER HIGHLY

REGULATED COMPONENT.

(7) DISPENSING PHARMACEUTICALS.

(8) A POSITION THAT REQUIRES THE EMPLOYEE TO CARRY A

FIREARM.

(9) DIRECT PATIENT CARE OR DIRECT CHILD CARE.

* * *

"UNDER THE INFLUENCE." A DRUG TEST PURSUANT TO WHICH IT IS

DETERMINED THAT AN EMPLOYEE OR JOB APPLICANT TESTS POSITIVE FOR

MARIJUANA AT A LEVEL OF TETRAHYDROCANNABINOLIC ACID IN URINE

EQUAL TO OR GREATER THAN 15 NANOGRAMS PER MILLILITER OR FAILS TO

SUBMIT TO A MARIJUANA TEST.

SECTION 2. SECTION 510 OF THE ACT IS 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 OF MEDICAL

MARIJUANA 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.

(3) A PATIENT MAY BE PROHIBITED BY AN EMPLOYER FROM

PERFORMING ANY TASK WHICH THE EMPLOYER DEEMS LIFE-

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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.]

(5) A PATIENT MAY NOT PERFORM ANY EMPLOYMENT DUTIES OF A

SAFETY-SENSITIVE POSITION WHILE IMPAIRED.

SECTION 3. SECTION 2103(B)(3) OF THE ACT IS AMENDED AND THE

SUBSECTION IS AMENDED BY ADDING PARAGRAPHS TO READ:

SECTION 2103. PROTECTIONS FOR PATIENTS AND CAREGIVERS.

* * *

(B) EMPLOYMENT.--

* * *

(3) NOTHING IN THIS ACT SHALL REQUIRE AN EMPLOYER TO

COMMIT ANY ACT THAT WOULD PUT THE EMPLOYER OR ANY PERSON

ACTING ON ITS BEHALF IN VIOLATION OF FEDERAL OR STATE LAW.

(4) AN EMPLOYER OR ENTITY THAT PROVIDES EMPLOYMENT

SERVICES OR INFORMATION MAY INDICATE THAT A JOB POSITION'S

APPLICATION PROCESS OR THE JOB REQUIRES A MARIJUANA TEST.

(5) AN EMPLOYEE OR JOB APPLICANT THAT TESTS POSITIVE FOR

MARIJUANA MAY DISCLOSE AND PRODUCE A VALID IDENTIFICATION

CARD AS PROVIDED UNDER THIS ACT TO THE EMPLOYER AS

DOCUMENTATION FOR TESTING POSITIVE OR LAWFULLY BEING UNDER

THE INFLUENCE OF MEDICAL MARIJUANA.

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(6) AN EMPLOYER MAY REQUIRE AN EMPLOYEE OR JOB APPLICANT

WHO HAS RECEIVED A CONDITIONAL OFFER OF EMPLOYMENT FOR A

SAFETY-SENSITIVE POSITION TO SUBMIT TO A TEST FOR MARIJUANA.

AN EMPLOYER MAY MAKE AN ADVERSE EMPLOYMENT DECISION AGAINST

A N EMPLOYEE OR JOB APPLICANT, AND NOT BE IN VIOLATION OF

PARAGRAPH (1), IF AN EMPLOYEE OR JOB APPLICANT:

(I) PROVIDED AN ADULTERATED OR SUBSTITUTED TESTING

SAMPLE OR HAS REFUSED TO SUBMIT TO A MARIJUANA TEST

REQUIRED BY AN EMPLOYER.

(II) FAILS TO DISCLOSE AND PRODUCE A VALID

IDENTIFICATION CARD AS PROVIDED UNDER THIS ACT .

(III) DISCLOSES AND PRODUCES A VALID IDENTIFICATION

CARD, AND IS IMPAIRED, IF THE EMPLOYEE'S POSITION IS A

SAFETY-SENSITIVE POSITIO N.

(7) NOTHING IN THIS ACT SHALL BE CONSTRUED TO CREATE OR

IMPLY A CAUSE OF ACTION FOR AN EMPLOYEE OR JOB APPLICANT FOR

A SAFETY-SENSITIVE POSITION BASED ON AN EMPLOYER'S GOOD FAITH

BELIEF THAT THE EMPLOYEE OR JOB APPLICANT VIOLATED THE

EMPLOYER'S LAWFUL WORKPLACE DRUG POLICY, AS FOLLOWS:

(I) ANY CLAIM THAT ARISES FOLLOWING AN EMPLOYEE'S OR

JOB APPLICANT'S NONCOMPLIANCE WITH THIS SECTION AND WHICH

MAY HAVE BEEN PREVENTED HAD THE EMPLOYEE OR JOB APPLICANT

COMPLIED.

(II) ACTIONS TAKEN PURSUANT TO AN EMPLOYER'S LAWFUL

WORKPLACE DRUG POLICY, INCLUDING SUBJECTING AN EMPLOYEE

OR JOB APPLICANT TO A MARIJUANA 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 ESSENTIAL FUNCTIONS OF A SAFETY-SENSITIVE

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POSITION.

(IV) ANY CLAIM THAT ARISES AS A RESULT OF AN

EMPLOYEE'S IMPAIRMENT WHILE AT THE EMPLOYER'S WORKPLACE.

(8) 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.

SECTION 4. THIS ACT SHALL TAKE EFFECT IN 60 DAYS.

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