Workplace Issues Associated with Legalized Marijuana. James B. Yates, Esq., SHRM-SCP, SPHR

Transcription

1 Workplace Issues Associated with Legalized Marijuana James B. Yates, Esq., SHRM-SCP, SPHR

2 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

3 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) Eastman & Smith Ltd. 3

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6 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 safetysensitive employee subject to drug testing under the Department of Transportation s drug testing regulations to use marijuana. Eastman & Smith Ltd. 6

7 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. Eastman & Smith Ltd. 7

8 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 Eastman & Smith Ltd. 8

9 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

10 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? Eastman & Smith Ltd. 10

11 Who Can Smoke It? Eastman & Smith Ltd. 11

12 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 Eastman & Smith Ltd. 12

13 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 Eastman & Smith Ltd. 13

14 Warning Label This product may cause impairment and may be habit forming. This product may be unlawful outside the State of Ohio. Eastman & Smith Ltd. 14

15 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 Eastman & Smith Ltd. 15

16 Qualifying medical 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 Eastman & Smith Ltd. 16

17 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 Eastman & Smith Ltd. 17

18 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 Eastman & Smith Ltd. 18

19 Permissible forms and methods Oils Tinctures Plant material Edibles Patches Any other form approved by the state board of pharmacy under R.C Eastman & Smith Ltd. 19

20 No Marijuana Products Attractive to Children This Photo by Unknown Author is licensed under CC BY-SA Eastman & Smith Ltd. 20

21 Impact Of Marijuana Use On Employment R.C 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

22 There Is No Private Right of Action R.C (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. Eastman & Smith Ltd. 22

23 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. Eastman & Smith Ltd. 23

24 R.C : Marijuana As A Reasonable Accommodation Nothing in this chapter... requires an employer to permit or accommodate an employee s use, possession, or distribution of medical marijuana Eastman & Smith Ltd. 24

25 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) Eastman & Smith Ltd. 25

26 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) Eastman & Smith Ltd. 26

27 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? Eastman & Smith Ltd. 27

28 Questions James B. Yates, Esq., SHRM-SCP, SPHR Eastman & Smith Ltd. 28