Bill Summary – FastDemocracy

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.
    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
    MAR