Weeding Through the Rules on Medical Marijuana

Regulated use of medical marijuana has been available in Pennsylvania since 2018, and questions about its use have been brought to the Legal Hotline from the start. The answers aren’t always what you might think — or what the user might tell you. Rather than a typical FAQ, read on for some of the common statements from tenants and some thoughts about what a landlord/property manager should know before responding.  

Holding all the cards 

Tenant: “Don’t worry — this is medical marijuana, so it’s legal!” 

That’s not good enough. 

Pennsylvania residents don’t just self-diagnose a need for medical marijuana and declare themselves eligible. Patients must go through a diagnostic process to obtain a medical marijuana use card, and they need that card to be a legal user. If a landlord is inclined to allow the use of medical marijuana in the leased premises (see below for more information), the landlord can verify that the tenant actually has a valid card. Landlords should check with a local attorney to ensure that they’re asking narrow questions designed simply to identify the qualifications without obtaining any unnecessary information about the individual’s medical history. For example, the landlord could verify the card, but should avoid demanding any detailed medical history behind the approval. 

Where there’s smoke, there’s a problem

Tenant: “Sorry about the smoke and smell, but here’s my medical marijuana card, so it’s legal.”  

No. Nope. No way. Not a thing. 

The law is verrrry specific: medical marijuana can be ingested or potentially vaporized (vaped), but smoking is never permitted. Period. If there’s a lighter involved, it’s always illegal. And not just “a technical violation of the medical marijuana law” illegal, but “possible arrest for illegal drug use” illegal. 

Many landlords have some sort of lease clause or rental policy requiring that tenants follow relevant laws. For example, PAR’s Residential Lease (Form RL) says that tenants will “obey all federal, state and local laws that relate to the Property.” Illegal drug use would be a violation of both federal and state law and could potentially lead to eviction. 

Aside from the legal issues, if the landlord has a no smoking policy as part of the lease, smoking marijuana is a violation just the same as if the tenant was smoking cigarettes, cigars or pipes. Depending on the circumstances, that could potentially lead to additional cleaning charges to get rid of any smell and residue, or even eviction. 

Note that vaping and smoking may be considered different activities if you’re pursuing eviction for a rules violation. If your goal is to ban vaping from a property, then best practice will be to update your policies to include that as a specific prohibition. 

Unreasonable accommodations 

Tenant: “I have a medical marijuana card based on my disability. The landlord needs to make reasonable accommodations so I can use medical marijuana in the property.” 

This can get complicated, but the starting point is that the use of (federally) illegal drugs is not a protected behavior and a landlord is not required to allow tenants to use medical marijuana in a leased property. That said, we recommend that landlords tread carefully and get local legal counsel involved to help cut the chances that decisions end up getting made based on inappropriate criteria.  

Assume the landlord has a lease provision that says a tenant must follow all applicable laws. If a tenant asks for an accommodation, the landlord could potentially rely on that provision to refuse, since they’re not required to allow an illegal use of the property. But if a landlord were to ask about the underlying condition before giving an answer — even something as simple as, “Oh … why did you get the card?” — a denial might be viewed as being based on the actual disability or a related characteristic rather than the drug use. For example, if a tenant whose use is based on PTSD is allowed to use marijuana on site, but one with sickle cell anemia or HIV is not, that might look like a discriminatory decision based on the nature of the disability or the tenant’s actual or perceived inclusion in one or more protected classes.  

To sum up: Landlords and property managers should take some time to review existing policies and see if they cover the landlords’ needs. Is there a no smoking policy? Does it include vaping? Will medical marijuana usage ever be permitted? If there’s an opportunity to add clarity, it’s usually good to do so. And as with so many issues that touch on the possibility of a discrimination claim, be sure to get local counsel involved sooner rather than later.