New workplace protections for medical cannabis patients in Puerto Rico

Puerto Rico has enacted Act No. 15-2021, providing protections against workplace discrimination for employees who are registered as authorized medical cannabis patients and identify themselves as such to their employers.

The new law, enacted on July 29, 2021, creates a new protected category under Puerto Rico antidiscrimination laws. Act 15-2021 is effective immediately and amends Act 42-2017, the Act to Manage the Study, Development and Investigation of Cannabis for Innovation, Applicable Norms and Limits.” Under the new law, employees cannot be discriminated against for being medical cannabis patients in relation to recruitment, hiring, termination, sanctions or work conditions.

Parameters of the new law

Act 15-2021 establishes that an employer will not be sanctioned or denied a contract, license, permit, certification, benefit or funding under Puerto Rico laws due to having employees who are registered medical cannabis patients. However, the employees’ protection will not apply if the employer proves that the use of medical cannabis by the employee (1) entails a real threat to persons or property; (2) interferes with the employee’s performance and essential duties; or (3) may expose the employer to the possibility of losing a license, permit, or certification related to federal laws, regulations, programs or funds. That is because the federal Controlled Substances Act still classifies cannabis as a Schedule I drug – its possession and use is still illegal under federal law.

An employee in Puerto Rico will not be covered by the protections of Act 15-2021 if he or she uses medical cannabis during working hours or is in possession of medical cannabis in the workplace without the employer’s written authorization.

Similarly, Regulation 8766 of the Puerto Rico Health Department, promulgated when the use of medical cannabis was authorized in Puerto Rico in 2015, does not permit patients to use medical cannabis in their workplaces unless their employers allow it and forbids the use of this substance by persons who execute “high risk labor,” eg, related to security and the operation of heavy machinery. Moreover, the Health Department’s Medical Cannabis Regulatory Board’s Regulation 9038, promulgated in 2018 to guide the application of Act 42-2017, also provides that individuals cannot operate motor vehicles and water or air transportation vessels under the influence of medical cannabis.

The Puerto Rico Department of Labor and the Medical Cannabis Regulatory Board has been ordered to promulgate a regulation based on Act 15-2021 by October 27, 2021.

Finally, Act 59-1997, which allows drug testing of employees and requires providing an opportunity for rehabilitation to employees who test positive, remains unchanged.

If you have any questions, please contact the authors or your DLA Piper relationship attorney.