There's no such thing as legal weed

Pennsylvania's medical marijuana law doesn't really protect people with disabilities. We should reinvent it now.

Welcome to the very first post of People’s Watch PA, a weekly newsletter where I break down issues in Pennsylvania legislative politics from a Left perspective.

This week, I’m taking a dive into something that’s guaranteed to come up in the legislature soon: Pennsylvania’s medical marijuana law. This is a law that is badly in need of amendment. I’m going to try to identify what I see as its signal failures, why I think they came about, and what lawmakers can do to make it work better for everyone in the Commonwealth.

If you like what you read, feel free to share the newsletter with a friend. If you have feedback for me, or maybe you just want to argue with me a little bit, I’d love to hear from you too. You can reply to this post or email me at daniel@peopleswatchpa.com.

-Daniel

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The right to use medical marijuana does not exist in Pennsylvania. Not in any meaningful sense, at least. There is a law, the Medical Marijuana Act of 2016 (or MMA), that nominally provides for the legal use of cannabis to treat certain disabilities and nominally prevents discrimination on the basis of being a medical cannabis user.

These protections, however, are basically perfunctory, and where workers with disabilities face actual discrimination from their employers the law proves worse than useless. It should be revised to include real anti-discrimination provisions for all users of medical cannabis or be eclipsed by full legalization immediately.

The push towards medical cannabis in Pennsylvania developed in a particular kind of way. Early proponents won bipartisan support for their legislation by insisting on the clear moral imperative to save lives, and this, more or less, was the line they hammered down the whole longsuffering way to enactment. In floor speeches to the House and Senate they made eternal returns to this idea of saving lives of Pennsylvanians everywhere. Often they spoke of medical cannabis as something of a godsend, or in any case something that should not be hastily refused. This, and they tended to limit their examples to children with uncommon but devastating conditions, typically forms of epilepsy difficult to treat with standard medicine.

You almost forget that what we’re talking about is drugs. In part this was a defensive maneuver, intended to head off the objections of a minoritarian but loud dissenting set who liked to harp on fantasies of a Pennsylvania immiserated by weed: kids getting high with their parents, dispensaries within spitting distance of schools, guarded warehouses full of cash and bud—that kind of thing. The figure of the child was crucial in the movement for medical cannabis not only because there were real children who could benefit from it, but because children’s innocence with respect to the drug was unassailable.

I highlight this rhetorical strategy because I want to suggest that the Medical Marijuana Act is shaped around the idea that medical cannabis users are like children. That is, they are presumed for the sake of lawmaking to be under the care of someone else, outside of the realm of public life, not working or driving places or anything. Shut-ins, more or less. This is the only sensible way to explain why, for instance, the text of the MMA is devoted overwhelmingly to the regulatory apparatus necessary for a private medical cannabis industry and almost not at all to the individual rights of cannabis users.

Perhaps the most disastrous example of the MMA’s laissez-faire attitude is its employment section. The section is pretty brief and pretty vague, and it does two big things very wrong. First, although it prohibits discrimination on the basis of being a medical card holder, it grants employers a broad power to discipline and dismiss employees who use medical cannabis without technically violating the law. Second, it severely limits the legal remedies available to employees who believe they have been wrongfully fired for using medical cannabis legally and responsibly.

Specifically, Section 2103(b)(1) holds that employers cannot take adverse actions against an employee “on the basis of such employee’s status as an individual who is certified to use medical marijuana.” Section 2103(b)(2), however, turns around and makes clear that the law will not “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.”

Employers can spin the vagueness of 2103(b)(2) pretty handily to their advantage, hitting employees with random drug tests and then firing them for testing positive despite knowing that these employees are medically certified to have marijuana in their system. This is because the law does not define impairment, and in the absence of any statutory definition, it can be a matter of the boss’s word against the worker’s—or a urine test. Employers are within their rights to demand a urine test, and, strictly speaking, a positive urine test would indicate that an employee is “under the influence” even if they haven’t used cannabis on the day of the test. By this logic, of course, there is no way for a regular user of medical cannabis to ever not be impaired, except by not using it at all.

You might wonder how this can be an acceptable formulation of the law, how the government can coerce people with disabilities into choosing between managing their symptoms and maintaining their employment. After all, to allow discriminatory action against someone for the thing they use to manage their disability is prima facie to allow discrimination on the basis of disability itself. Right? And that’s illegal.

Except, by some perverse logic, it’s not illegal. As the Commonwealth Court recently suggested in a precedential decision, HACC v. PHRC, medical cannabis effectively disqualifies its users from protected disability status under Pennsylvania’s anti-discrimination statutes. Consequently, the very disabilities for which medical cannabis exists are rendered illegitimate by it, and the very people the Medical Marijuana Act is designed to help it harms.

The Court’s reasoning on this issue is not too complicated, but it is pretty long-winded; I’ll try to summarize it as simply as I can. The key point of fact in this case is that both the Pennsylvania Fair Educational Opportunities Act (PFEOA) and the Pennsylvania Human Relations Act (PHRA) exclude users of illegal substances from disability protections. The question, then, is whether marijuana counts as illegal. As the Court argues, it is, since both the PFEOA and PHRA incorporate the Federal definition of “illegal substance” in the Controlled Substances Act, under which marijuana is still a Schedule I drug. Thus, since the Medical Marijuana Act does not amend either the PFEOA or PHRA to include legal marijuana use, the Court has to conclude that it is unprotected under the law in question.

In a separate case, Hudnell v. Thomas Jefferson University Hospitals, the U.S. District Court for the Eastern District of Pennsylvania found that Section 2103(b)(1) creates a private right of action for employees, meaning that they can bring lawsuits against their employers if they believe they’ve been wrongfully fired—but this is somewhat beside the point, at least until we see a lawsuit under the MMA succeed. In the meantime, the law should be expanded to better clarify the rights of employees and to include marijuana in PA’s anti-discrimination laws. Until then, there can be no real relief for Pennsylvania’s workers, and no legitimate right to medical cannabis.

I mentioned up top that Pennsylvania’s medical cannabis law was designed to serve a particular and in some ways stereotyped version of disability. I think that this is true. I think that a law like the Medical Marijuana Act works, as it should, for people whose disability makes them unable to work. But it also works remarkably well for groups of people like owners and the PMC, whose work is not precarious and generally is autonomous; people who require no protection from the state, just the OK to do what they want to do. These are the Pennsylvanians who are redeemed by the MMA; now let’s redeem the rest.

A law like the Medical Marijuana Act ought to help us think more expansively about disability and state response: what it means to live a fulfilling life, what it takes to secure that life for everyone, and what the state can do to meaningfully intervene on that project. What we have instead are so many tortured contradictions. If the legislature will not seriously overhaul the MMA—and I’m not sure that they will—then we should see full legalization passed with urgency. What the legislature should really do is take marijuana under its control like wine and liquor, stuff it with a healthy 20% excise tax, and then sell it in the state stores. And I’m not just saying that because there are, like, three of them within ten minutes of my house, either.