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Updates for Employers Regarding Medical Marijuana

In 2020, the momentum for marijuana legalization and decriminalization continued. In the November elections, five more states legalized either medical marijuana, recreational marijuana, or both. Although marijuana remains illegal in any form under federal law, just last week, the U.S. House of Representatives voted to decriminalize marijuana usage at the federal level. It's unlikely that the Senate will approve of that, but it is another milestone in what has been a rapidly shifting landscape over the last decade. Given the patchwork of state laws regarding medical and recreational marijuana, widely varied approaches for workplace protections, and the total federal ban, it can be difficult for employers to know how to deal with this issue.

Does a company need to accommodate an employee's medical marijuana use?

Well, it depends (sorry, did I mention I'm a lawyer?). In many states where medical marijuana is legal, including Ohio, there is no obligation on the part of the employer to accommodate an employee's use of medical marijuana. In those states, employers may fire or refuse to hire an employee who tests positive for marijuana, even if that employee is lawfully using marijuana pursuant to the state's laws. However, in some states, medical marijuana laws include protections for employees who use medical marijuana. For example, in Connecticut, federal courts have held that, aside from certain limited exceptions, an employer may not fire or refuse to hire an employee based on marijuana use if the employee is only engaging in lawful, off-duty use of medical marijuana. Note that even in states where employee protections are provided, employers still as a general rule may take action if an employee is using or actively under the influence of medical marijuana during working hours and/or in the workplace. Particularly for employers operating in multiple states, it is important to seek expert advice and engage in careful analysis of company drug policies and procedures as the maze of laws regarding medical marijuana continue to evolve.

May a company make exceptions to its drug free workplace policy for medical marijuana use that is lawful under state law?

Yes, but there are important factors to consider in doing so. As medical marijuana becomes more common and accepted in the U.S., some employers are seeking to relax their drug policies to accommodate employees using the substance lawfully under state law. This is generally permissible, but such a policy change may come with unintended consequences that should be assessed. Employers should consider whether this may affect their participation in state workers' compensation discount programs tied to drug-free workplace requirements. Companies should also consider whether certain positions are particularly safety-sensitive and may pose a concern in connection with such a policy change. Further, if a company receives federal funding, they may be precluded from this approach by the Federal Drug Free Workplace Act. Again, employers should seek out expert advice and careful analysis of the potential consequences of policy change in this evolving area.

As marijuana laws change, the laws and policies will also continue to develop. Please call or email Russell T. Rendall at (216) 658-2205 or rtrendall@bmdllc.com with any questions, or reach out to your BMD Cannabis Law Attorney to learn more about employee medical marijuana use and drug free workplace policies.

El Contrato Escrito: La Herramienta Predilecta

No existe mejor herramienta a una disputa contractual que un documento firmado por las partes en el cual se expongan las obligaciones y acuerdos entre éstas.

New State Budget Institutes Licensure Requirement for Ohio’s Hospitals

On July 1, 2021, Governor Mike DeWine signed Ohio’s final budget codified at Ohio Revised Code 3722.01 et seq., which includes a new licensing requirement for Ohio’s hospitals. For years, Ohio was the only state in the country that did not license its hospitals. This approach will now be replaced with new, detailed requirements that will require careful review and compliance. Here are some of the highlights concerning these new changes:

Healthcare Provisions in the Ohio FY 22-23 Budget

Governor Mike DeWine signed Ohio’s Fiscal Year 2022-2023 budget bill (HB 110) into law on July 1, 2021. At almost 1,000 pages and 74.1 billion dollars, the budget lays out the State’s spending for the next two years. Below are a few highlighted provisions from the budget that will be important for the healthcare industry in Ohio

Interim Final Rule for Surprise Billing

In an effort to implement the new bipartisan No Surprises Act, on July 1, 2021, the Department of Health and Human Services (HHS), along with the Departments of Labor and Treasury, issued an interim final rule to safeguard patients against unforeseen medical bills arising from out-of-network care.

President Biden Seeks to Limit Non-Compete Agreements

Today, President Biden announced he would issue an Executive Order that calls on the Federal Trade Commission (FTC) to adopt rules to curtail worker non-compete agreements. Interestingly, a week ago, the FTC approved changes to its Rules of Practice to modernize and expedite the way it issues Trade Regulation Rules. If you have followed our alerts, we predicted the elimination of non-competes would probably happen. In 2016, then-Vice President Biden was a vocal opponent against non-compete agreements. He led the Obama administration’s initiative seeking to limit or eliminate non-compete agreements. In his presidential campaign, Biden promised to “work with Congress to eliminate all non-compete agreements, except the very few that are absolutely necessary to protect a narrowly defined category of trade secrets . . ..”