PR&LA Summer 2018

20  • PENNSYLVANIA RESTAURANT & LODGING matters • Summer 2018 LEGAL DOCKET The Attorney ask Pennsylvania’s Medical Marijuana Act What Employers Need to Know Michael E. Rowan, Esquire SHUMAKER WILLIAMS, P.C. General Counsel, Pennsylvania Restaurant & Lodging Association Michael E. Rowan, Esquire SOCIETY’S ATTITUDE TOWARDS marijuana has changed rapidly in the last several years. As a society, we have moved from a war on drugs to having most states legalize some form of marijuana use and possession. Pennsylvania is no exception. On May 17, 2016, Pennsylvania’s Medical Marijuana Act went into effect. The Medical Marijuana Act allows patients with certain medical conditions and their caretakers to obtain certification to purchase medical marijuana. Approved diagnoses include cancer, Crohn’s disease, epilepsy, glaucoma, HIV/AIDS, multiple sclerosis, Parkinson’s disease, severe chronic or intractable pain and terminal illness. Once certified, the patient or the patient’s caretaker may purchase medical marijuana from a licensed dispensary. As of March 2018, there were more than 21,000 certified medical marijuana users in Pennsylvania. The Act says little regarding medical marijuana in the workplace. Furthermore, marijuana remains illegal under federal law. For Pennsylvania’s employers, therefore, dealing with an employee who uses medical marijuana can feel like a catch-22, with many conflicting concerns and protections. For example, may an employer punish someone for use of medical marijuana outside of the workplace? Does that constitute disability discrimination? Must an employer provide a reasonable accommodation for an employee’s use of medical marijuana if it impacts their job performance? Two provisions in the Act address employment-related concerns. First, Section 510 provides that a patient “may be prohibited by an employer” from performing any task the employer deems life-threatening or could result in a public health or safety risk while under the influence of medical marijuana. Second, Section 2103 provides that an employer may not “discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee… on the basis of such employee’s status as an individual who is certified to use medical marijuana.” Section 2103 also says that the Act does not “require an employer to make any accommodation of the use of medical marijuana on the property or premises of any place of employment.” Finally, Section 2103 states that “[n]othing 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 law.” What does this mean for employers? In short, employers should view any employee that is a certified user of medical marijuana as a member of a “protected class” that is protected under the Americans with Disabilities Act (ADA) and the Pennsylvania Human Relations Act. While an employer is not required to accommodate an employee’s use of medical marijuana in the workplace, other accommodations may be required. At a minimum, if an employee is a certified user of medical marijuana and requests an accommodation, the employer should engage in the interactive process with the employee to determine if a reasonable accommodation is possible. Pennsylvania courts have not yet weighed in on the extent of employers’ obligations under the Act. In some states with medical marijuana statutes, courts have ruled that employers may strictly enforce zero- tolerance policies, even against a certified medical marijuana user. Other courts have held that employers may be required to make exceptions to workplace drug polices in order to comply with the ADA. Regardless of how Pennsylvania courts may rule, employers must recognize the new risks that the Pennsylvania Medical Marijuana Act presents for the workplace. • If you have any questions concerning this or other legal issues, please contact Michael E. Rowan (410-825-5223; mrowan@shumakerwilliams.com ) at Shumaker Williams, PC, PRLA’s General Counsel.