Workplace protection for registered and authorized patients of medical cannabis

On July 29, 2021, the Governor of Puerto Rico, Hon. Pedro R. Pierluisi, signed into law Act No. 15-2021 (“Act 15-2021”), an amendment to Act. No. 42-2017 known as the Law to Manage the Study, Development and Research of Cannabis for Innovation, Applicable Standards and Limits (“the Medicinal Cannabis Act of 2017”). The Medicinal Cannabis Act of 2017, among other dispositions, allows the use of medical cannabis per a doctor’s recommendation for duly authorized individuals suffering from a serious health condition. This amendment extends protections to employees in the workplace who are registered and authorized medical cannabis patients.

Act 15-2021 provides that registered and authorized patients who identify as such to their employers will be considered within a protected class. Employers are prohibited from discriminating against such employees in recruitment, hiring, promotions, terminations or to take any adverse action against such protected category of employees.

However, Act 15-2021 specifies four (4) exclusions to these protections if the employer establishes any of the following conditions:

  1. the use of medicinal cannabis represents a real threat of damage or danger to people or property; or
  2. the use of medicinal cannabis by the registered and authorized patient interferes with his/her performance or essential functions of the job; or
  3. the use of medicinal cannabis by the registered and authorized patient exposes the employer to the loss of a license, permit or certification related to some other law, regulation, program, or federal fund; or
  4. the registered and authorized patient uses or is in possession of medicinal cannabis in the workplace and/or during working hours without written authorization of the employer.

These protections must be interpreted liberally in favor of the registered and authorized patient. Moreover, the employer has the burden of proof, by preponderance of the evidence, to establish that the employee falls within any of the above stated exclusions to deny the protections afforded under this Act.

Furthermore, the amendment provides that an employer cannot be penalized or be refused contracts, licenses, permits, certifications, benefits, or funds under the laws of the Commonwealth of Puerto Rico for the only reason of hiring such registered and authorized patients.

Finally, Act 15-2021 became effective immediately. It requires the Puerto Rico Department of Labor and Human Resources and the Regulations Board of Medicinal Cannabis to adopt the regulations and administrative orders deemed necessary to achieve the implementation of this law, within ninety (90) days since its effective date.

We are available to assist you in the implementation and/or revision of the pertinent policies to assure compliance with the protections established in Act 15-2021 for this newly protected class of employees.