workplace issues associated with legalized marijuana issues re legalized...use, possession, or...

Workplace Issues Associated with Legalized Marijuana

James B. Yates, Esq., SHRM-SCP, SPHR jbyates@eastmansmith.com

Agenda:• Nationwide legalization efforts

• Ohio’s medical marijuana law

• The impact of medical marijuana:

• Drug free workplace and zero-tolerance drug policies

• Workers’ compensation defenses • An employer’s duty to accommodate • Disciplinary action • Other effects/concerns

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Changing Attitudes Toward Marijuana

• August, 2017 Quinnipiac University Poll• 61% of American voters support legalization• 94% of American voters support medical

marijuana use• 77% of Americans between 35 and 49 years

old support national legalization• July, 2017 Gallup Poll

• 45% of Americans have tried marijuana• 12% of Americans currently smoke marijuana

(18% of Americans between the ages of 18-29)

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Federal Law and Marijuana• Federal – Marijuana continues to be classified

as a Schedule I drug under the Controlled Substances Act

• DOT: “It remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.”

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Attorney General Jeff Sessions

• Sen. Jeff Sessions oversees federal prosecutors and the Drug Enforcement Administration.

• Marijuana classified as a Schedule 1 drug under Federal Controlled Substances Act

• “We need grown-ups in Washington to say marijuana is not the kind of thing that ought to be legalized, it ought not be minimized, that it is in fact a very real danger.”

• “Good people don’t smoke marijuana.”

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Marijuana is Big Busine$$• Potential $100 billion market?• Estimated taxes of $655 million in 2017 (57.2%

increase in total marijuana taxes collected over 2016)

• Jobs?– Manufacturers– Equipment suppliers

– Stores– Smoking Accessories– Delivery services?– Lab testing

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Ohio Law Highlights• Permits a patient to use medical

marijuana to treat a qualifying condition

• Establishes a Medical Marijuana Control Program

• Establishes Patients’ Rights• Codifies Employer Rights• Regulates growing, processing, and

health care providers• Municipalities can prohibit facilities

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Medical Marijuana Control Program

• Who can grow it?• Who can process it? • Who can test it? • Who can use it?• Who can possess it?• Who can recommend it?

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Who Can Smoke It?

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Cultivators• 24 cultivator licenses

• 12 Level I (up to 25,000 square feet) ($200,000)

• 12 Level II (up to 3,000 square feet) ($20,000)

• Application process• Business plan• Operations plan• Safety and security plan• Criminal check• Financial statements

• No “home growers”

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Processors

• 40 processor licenses• Processor fees = $100,000 (annually)

• Child proof, tamper resistant, light-resistant packaging

• “Sample jars” may be provided to dispensaries “to allow patients and caregivers to smell the plant materials before purchases”

• Processors cannot sell to patients or caregivers

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Warning Label

This product may cause impairment and may be habit forming. This product may be unlawful outside the State of Ohio.

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Qualifying Medical Conditions

• Acquired immune deficiency syndrome;

• Alzheimer's disease; • Amyotrophic lateral sclerosis; • Cancer; • Chronic traumatic encephalopathy; • Crohn's disease; • Epilepsy or another seizure disorder; • Fibromyalgia; • Glaucoma;

• Hepatitis C;• Inflammatory bowel disease; • Multiple sclerosis; • Parkinson's disease; • Positive status for HIV; • Post-traumatic stress disorder; • Sickle cell anemia; • Spinal cord disease or injury; • Tourette's syndrome; • Traumatic brain injury; and• Ulcerative colitis

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Qualifyingmedical conditions also include …

• Pain that is either: • Chronic and severe; or • Intractable.

• Any other disease or condition added by the state medical board under R.C. 4731.302.

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Dispensaries

• Up to 60• Obtain Certificate of Operation from State Board of Pharmacy• Application includes financial information, criminal background

checks, plan for physical location, inventory control and security, staff training and registration

• Cannot be located within 500 feet of school, church, public library, public playground or public park

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Patients and Caregivers• Must have certified physician recommendation

for marijuana• Patients and caregivers must register with State

Board of Pharmacy (and pay fee)• “Bona fide patient-physician relationship”• Diagnosis of qualifying condition• Ohio resident unless reciprocity agreement

for “substantially comparable” card• Treating physician must submit registration• Must provide registration card and photo ID

before entering dispensary

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Permissible forms and methods • Oils • Tinctures • Plant material• Edibles• Patches • Any other form approved by the state

board of pharmacy under R.C. 3796.061

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No Marijuana Products Attractive to Children

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Impact Of Marijuana Use On EmploymentR.C. 3796.28 provides employers:

• Do not have to permit or accommodate an employee’s use, possession, or distribution of medical marijuana.

• May refuse to hire, discharge, discipline, or otherwise take adverse action against someone because of the individual’s use, possession, or distribution of medical marijuana.

• May establish and enforce drug testing policies, drug-free workplace policies, or zero-tolerance drug policies.

• Have “just cause” for the purposes of unemployment compensation to fire employees for violating drug-free workplace policies or zero-tolerance drug policies. Eastman & Smith Ltd. 21

There Is No Private Right of Action

R.C. 3796.28(A)(5) provides nothing in the law “permits a person to commence a cause of action against an employer for refusing to hire, discharging, disciplining, discriminating, retaliating, or otherwise taking adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment related to medical marijuana.”

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Medical Marijuana and Workers’ Compensation• Law specifies marijuana is

covered under the “rebuttable presumption.”

• Rebuttable presumption places the burden on the employee to prove the marijuana was not the proximate cause of the injury.

• This is true even if the marijuana was recommend by a physician.

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Marijuana As A Reasonable

Accommodation

R.C. §3796.28:

“Nothing in this chapter. . . requires an employer to permit or accommodate an employee’s use, possession, or distribution of medical marijuana”

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Payment for Medical Marijuana in Ohio

• Ohio BWC’s limits on reimbursements– Covered drugs are limited to those approved by USFDA– BWC-funded prescriptions must be dispensed by a registered

pharmacist from an enrolled provider (not marijuana dispensaries)– BWC reimburses only for drugs on pharmaceutical formulary

(marijuana is not on formulary)

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Payment for Medical Marijuana in Other States

• New Mexico – medical marijuana treatment may be reasonable and necessary and, if so, the employer and insurer must pay

• Minnesota permits medical marijuana as a form of treatment which is reimbursable in workers’ compensation claims

• This issue is the subject of pending litigation in California and will be in other states (Massachusetts, Rhode Island)

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Areas of Concern• Employers with locations in other states

need to become familiar with all state laws as each law is different

• Presence testing v. impairment• Knowledge of reason for marijuana card

could lead to knowledge of disability• “Just cause” to discipline/discharge?• Revise policies?• Continue to test?

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Questions

James B. Yates, Esq., SHRM-SCP, SPHR jbyates@eastmansmith.com419-247-1830

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