MEDICAL MARIJUANA OSHA COMPLIANCE October 11, 2016 Hosted by Presented by: Randall M. Comer, Esq. Martin, Browne, Hull & Harper, PLL One South Limestone Street, Suite 800 Springfield, Ohio 45504 (937) 324-5541 rcomer@martinbrowne.com The information contained in this handout is not intended as a substitute for professional legal advice and its receipt does not constitute an attorney-client relationship. If you have any questions, please contact your attorney at Martin, Browne, Hull & Harper, P.L.L.
I. Medical Marijuana for Ohio A. Legislation signed in June 2016 by Gov. John Kasich creates a regulated program controlled by three government agencies that won't be set up for at least a year. The law leaves much of the details of the program up to the Ohio Department of Commerce, State Pharmacy Board, State Medical Board and a yet to be appointed bipartisan advisory committee. 1. The law explicitly prohibits smoking marijuana or growing it at home. The law does allow patients to inhale vaporized marijuana. Lawmakers said the idea that people would "smoke their medicine" went against common sense and prevalent public health messages against cigarette smoking. 2. Patients qualify if they have the following conditions: HIV/AIDS; Alzheimer's disease; Amyotrophic lateral sclerosis (ALS); cancer; chronic traumatic encephalopathy (CTE); Crohn's disease; epilepsy or another seizure disorder; fibromyalgia; glaucoma; hepatitis C; inflammatory bowel disease; multiple sclerosis; pain that is chronic, severe, and intractable; Parkinson's disease; post traumatic stress disorder; sickle cell anemia; spinal cord disease or injury; Tourette's syndrome; traumatic brain injury; and ulcerative colitis. Individuals can petition the state medical board to add conditions. 3. Doctors must register with the state, which will require continuing education about cannabis, before being able to recommend marijuana to patients with whom they have bona fide relationships. 4. If you would qualify under the law's conditions (see below) and have written permission from your doctor, then you could use marijuana without going to jail in early September. 5. Dispensaries won't be set up for a least a year, maybe longer. The law requires the whole program to be operational within two years. B. How will this new law impact Ohio workplaces? 1. Drug-free workplaces and zero-tolerance drug policies remain alive and well; a. Employers should review and update the policies to specifically state that, despite Ohio s new law, medical marijuana is prohibited under these policies. b. For those employers who may not have a drug-free workplace or zero-tolerance drug policy in place, it is recommended that one is drafted before September 2016. 2. No obligation to accommodate an employee s medical marijuana use;
3. It s legal to fire employees for use, possession or distribution of medical marijuana; a. Ohio s new law specifically states that is does not authorize employees to sue an employer for adverse employment action related to medical marijuana. b. Because the ADA does not protect individuals currently using illegal drugs, an employee may still be fired for periodic use of marijuana (medicinal uses included) in the weeks and months before the discharge. 4. Medical marijuana users are not entitled to unemployment benefits; a. Ohio s medical marijuana law contains a provision stating that, for purposes of Ohio s unemployment compensation law, an employer has just cause to fire an employee for his or her use of medical marijuana, provided the use violated the employer s DFWP or zero-tolerance drug policies. 5. Workers compensation claim defenses are unchanged. a. Intoxication (including marijuana) is a defense to a claim for WC benefits. Ohio s new medical marijuana law does not alter an employer s right to challenge workers compensation claims where medical marijuana use results in injury and allows it to utilize a positive, post-accident drug screen for marijuana. II. OSHA - Electronic Record Keeping Rules 29 C.F.R. 1902 & 29 C.F.R. 1904 OSHA published new recordkeeping rules on May 12, 2016. The Rule becomes effective on January 1, 2017, except for Sections 1904.35 and 1904.36, which will become effective on November 1, 2016. 1. Electronic Recordkeeping Requirements: a. Establishments with 250 or more employees are required to electronically submit required information from the three OSHA recordkeeping forms that employers are required to maintain pursuant to Part 1904. https://www.osha.gov/recordkeeping/rkforms.html OSHA Form 300A Summary of Work-Related Injuries OSHA Form 300 Log OSHA Form 301 Injury and Illness Report Form b. Establishments with between 20 and 249 employees that are classified in a designated industry must electronically submit required information from the OSHA 300A summary form. c. Everyone is required to electronically submit information upon request by OSHA
d. Reporting is annual for a calendar year, due by March 2 of the following year. e. The following information should NOT be reported. Employee Name Employee Address Name of physician or healthcare provider Facility name and address if treatment was given away from the worksite. f. Phased in over a three year period. 2. Section 1904.35 & 1904.36 Changes OSHA is concerned that employers will under report injury data, especially now that the electronic submissions will improve public availability of the data. To address this concern, the new rule contains three (3) new provisions designed to promote complete and accurate reporting of work-related injuries and illnesses by encouraging employees to make reports. a. Requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation. b. Clarifies that the employer s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting. c. Prohibits employers from retaliating against employees for reporting work-related injuries or illnesses. 3. Employee Rights and Post-Accident Drug Testing The new rule warrants immediate evaluation of post-accident drug testing policies to ensure compliance. a. OSHA has taken the position that automatic, mandatory drug testing following any job-related or workplace accident discourages employees from promptly and accurately reporting such incidents. b. OSHA believes that such testing may serve as retaliation against an employee who properly reports such an accident. c. OSHA has advised that post-accident drug testing should be performed only in situations where it appears that drug use was the direct cause of, or a contributing factor to, the accident.
d. Additionally, OSHA has indicated there may be issues with drug-testing processes in general. e. After November 1, 2016, OSHA may cite employers for post-accident drug testing policies and/or procedures that are deemed too broad or retaliatory of employees who report work-place accidents. f. OSHA cannot prevent employers from complying with other federal or state laws, and an employer mandating post-accident drug testing in accordance with such laws is not retaliating against its employee. As a result, employers who are testing employees after an accident in order to comply with a more specific federal or state law or regulation should continue to do so. Examples of this would be testing mandated by workers compensation laws, or testing required by a Department of Transportation. Barring such an exception, employers should reevaluate their drug testing policies and procedures to ensure compliance with OSHA s new rule. III. Posters, Forms, Notices and Fines A. Posters OSHA Job Safety and Health It s The Law poster 4/2015 or later https://www.osha.gov/publications/osha3165-8514.pdf B. Forms OSHA Recordkeeping Forms https://www.osha.gov/recordkeeping/rkforms.html OSHA Form 300A Summary of Work-Related Injuries OSHA Form 300 Log OSHA Form 301 Injury and Illness Report Form No changes to the forms, but they are available online in fillable format and as an excel sheet. C. OSHA Fines Increase Effective August 1, 2016, OSHA fines for safety violations increased by 78%. The last adjustment was made in 1990. a. Maximum penalty will increase from $7,000 per violation to $12,471. b. Maximum penalty for willful or repeated violations will increase from $70,000 to $124,709.
Randall M. Comer Partner Randall joined Martin Browne in 2003 and has been a partner since 2008. Randall s practice area is general defense litigation with an emphasis on labor, employment, and workers compensation matters. Born and raised in Springfield, Randall and his family are proud to call the area their home. Bar Admissions Ohio U.S. District Court, Southern District of Ohio U.S. District Court, Northern District of Ohio Professional Memberships & Activities Ohio State Bar Association, 2000 - Present o President-Elect, 2016-2017 o Board of Governors, 2013-2016 Clark County Bar Association, 2003 Present Dayton Ohio Bar Associations, 2015 - Present Greene County Bar Association, 2016 Community Activities Clark County Mental Health Foundation o Chair, 2015 - Present Community Health Foundation The Springfield Foundation, Governance Committee o The Springfield Foundation Board, past Selective Service Board Awards, Recognition & Certifications Ohio Super Lawyers, 2011-2013, 2017 Ohio Super Lawyers Rising Stars, 2005 Contact Information One Main St., Ste. 800 P.O. Box 1488 Springfield, OH 45501-1488 Direct: (937) 398-0822 rcomer@martinbrowne.com Paralegal Brenda Rushing Office: (937) 324-5541 brushing@martinbrowne.com Practice Areas Labor & Employment Litigation Workers Compensation Education College of Charleston, B.S. Psychology, cum laude, 1993 University of Cincinnati School of Law, J.D., 2000 Editor-in-Chief, University of Cincinnati Law Review
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