PRINTER'S NO. 893
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
REFERRED TO HEALTH AND HUMAN SERVICES, JUNE 14, 2021
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.
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
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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,
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.
* * *
20210SB0749PN0893 - 2 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
"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:
(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.
20210SB0749PN0893 - 3 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
(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
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
20210SB0749PN0893 - 4 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
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
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
20210SB0749PN0893 - 5 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
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
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
20210SB0749PN0893 - 6 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
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
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
20210SB0749PN0893 - 7 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
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.
20210SB0749PN0893 - 8 -
1
2
3
4
5
6
7
8
9