Medical Marijuana and The Impact on Workplace Injuries

Transcription

1 Medical Marijuana and The Impact on Workplace Injuries

2

3

4 The Legislation A. H.B. 523 effective September 8, Ohio is 25 th State to legalize medical marijuana in some form 2.Implementing rules are still being developed. 3.But currently: a.no authorized growers or processors b.no Ohio physicians have been certified by State to be able to recommend medical marijuana to patients. A prescription is illegal under Federal law. To be developed by September 8, c. probably 18 months to 2 years before medical marijuana will be available.

5 4. Qualifying conditions include: a. HIV/AIDS g. Epilepsy or m. Parkinson s disease seizure disorder n. PTSD b. Alzheimer s h. Fibromyalgia o. Sickle cell anemia disease i. Glaucoma p. Spinal cord disease or injury c. ALS j. Hepatitis C q. Tourette s syndrome d. Cancer k. MS r. Traumatic brain injury e. CTE l. Pain that is chronic, severe and intreatable s. Ulcerative colitis f. Crohn s disease

6 II. Legislative Services Commission Summary of Employment Law Provisions A. Provides that nothing in the bill: 1. (nothing) requires an employer to permit or accommodate an employee s use, possession, or distribution of medical marijuana; 2. (nothing) prohibits an employer from taking any adverse employment action an employer may take under current law because of a person s use, possession, or distribution of medical marijuana; or 3. (nothing) permits a person to sue an employer for taking an adverse employment action related to medical marijuana.

7 B. Provides that nothing in the bill prohibits an employer from establishing and enforcing a drug testing policy, drug-free workplace policy or zero-tolerance drug policy or interferes with Federal restrictions on employment, including U.S. Department of Transportation regulations.

8 C. Considers a person who is discharged from employment because of the person s medical marijuana use to have been discharged for just cause under the Unemployment Compensation Law if the use violated an employer s drug-free workplace policy, zerotolerance policy, or other formal program or policy regulating medical marijuana use and thus ineligible for unemployment benefits, which appears to be similar to current law.

9 D. Maintains the rebuttable presumption that an employee is ineligible for workers compensation if the employee was under the influence of marijuana and being under the influence of marijuana was the proximate cause of the injury, regardless of whether the marijuana use is recommended by a physician.

10 E Rights of Employer. A. Nothing in this chapter does any of the following: 1. (nothing) Requires an employer to permit or accommodate an employee s use, possession, or distribution of medical marijuana; 2. (nothing) Prohibits an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person s use, possession or distribution of medical marijuana;

11 3. (nothing) Prohibits an employer from establishing and enforcing a drug testing policy, drug-free workplace policy or zero-tolerance drug policy; 4. (nothing) Interferes with any Federal restrictions on employment, including the regulations adopted by the United states Dept. of Transportation in Title 49 of the Code of Federal Regulations, as amended;

12

13 5. (nothing) Permits a person to commence a cause of action against an employer for refusing to hire, discharging, disciplining, discriminating, retaliating, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment related to medical marijuana;

14 6. (nothing) Affects the authority of the administrator of workers compensation to grant rebates or discounts on premium rates to employers that participate in a drug-free workplace program established in accordance with rules adopted by the administrator under Chapter 4123 of the Revised Code.

15 B. A person who is discharged from employment because of that person s use of medical marijuana shall be considered to have been discharged for just cause for purposes of division (D) of section of the Revised Code if the person s use of medical marijuana was in violation of an employer s drug-free workplace policy, zero-tolerance policy or other formal program or policy regulating the use of medical marijuana.

16 F. What does it mean for employers? 1. States that terminations from employment due to an employee s use of medical marijuana shall be considered to be for just cause. 2. Employer s DO NOT need to accommodate an employee s use, possession or distribution of medical marijuana.

17

18 3. An employer may refuse to hire, discharge, discipline of otherwise take an adverse employment action against a person with respect to hire, tenure, etc. because of their use, possession or distribution of medical marijuana.

19

20 III. Defense of Workers Compensation Claim A. Not entitled to receive compensation or benefits if injury is proximately caused by the employee being: 1. intoxicated; 2. under influence of controlled substance not prescribed by a physician; 3. under influence of marijuana as proximate cause.

21 B. Rebuttable presumption if there is posted notice of drug testing policy and 1. tests positive (specifically identifies influence of marijuana); 2. refuses test.

22 IV. Other Workers Compensation Implications A. BWC intends to reject any payment for medical marijuana under an allowed claim. 1. not approved by FDA; 2. not pursuant to a prescription or dispensed by a pharmacy; 3. not part of BWC pharmaceutical formulary.

23 B. Pending Supreme Court decision in State ex. rel. Cordell v. Pallett Companies, 2014-Ohio Issue is entitlement to temporary total compensation when employee has a valid claim but was terminated for positive drug test; 2. argued in September 2016 and decision to be issued within next two months 3. pre-injury infraction not discovered until postinjury; 4. will affect the impact of Drug Free Workplace Policy