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 [email protected]

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

Eastman & Smith Ltd. 2

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)


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.”


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.”


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


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

9

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?


Who Can Smoke It?


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”


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


Warning Label

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


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


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.


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


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


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


No Marijuana Products Attractive to Children

Eastman & Smith Ltd. This Photo by Unknown Author is licensed under CC BY-SA

20

http://de.wikipedia.org/wiki/Datei:Jelly---Gummi-Bear---Red---Detailed---(Gentry).jpg

https://creativecommons.org/licenses/by-sa/3.0/

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.”


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.


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”


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)


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)


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?


Questions

James B. Yates, Esq., SHRM-SCP, SPHR [email protected]


mailto:[email protected]

Workplace Issues Associated with Legalized Marijuana Issues re Legalized...use, possession, or...

Documents

Transcript of Workplace Issues Associated with Legalized Marijuana Issues re Legalized...use, possession, or...