PRLA Restaurant & Lodging Matters Fall 2019

Fall 2019 • PENNSYLVANIA RESTAURANT & LODGING matters •  23 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 states 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.” Exactly what this means for employers remains unclear. As suggested when the law was first enacted, 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. It is highly recommended that 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 still have not addressed the extent of employers’ obligations under the Act. In some states with medical marijuana statutes, including California, Washington, and Oregon, courts have ruled that employers may strictly enforce zero-tolerance policies, even against a certified medical marijuana user. Courts in other states, such as Massachusetts, 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 ultimately rule, employers should be familiar with the Act and prepared to properly manage employees at the workplace that are certified to use medical marijuana. • If you have any questions concerning this or other legal issues, please contact Michael E. Rowan (717-763-1121; mrowan@shumakerwilliams. com) at Shumaker Williams, P.C., PRLA’s General Counsel. Spirit of Hospitality Awards Gala NOV. 18 • OMNI BEDFORD SPRINGS CELEBRATING PENNSYLVANIA’S HOSPITALITY & TOURISM INDUSTRIES AT THE PRLA ANNUAL CONFERENCE TICKETS WWW.PRLA.ORG/ANNUALMEETING