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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.

New York, Kansas, Massachusetts, and Delaware Become the latest States to Adopt Full Practice Authority for Nurse Practitioners

While the COVID-19 pandemic certainly created many obstacles and hardships, it also created many opportunities to try doing things differently. This can be seen in the instant rise of remote work opportunities, telehealth visits, and virtual meetings. Many States took the challenges of the pandemic and turned them into an opportunity to adjust the regulations governing licensed professionals, including for advanced practice registered nurses (APRNs).

Explosive Growth in Pot of Gold Opportunity for Bank (and Other) Cannabis Lenders Driving Erosion of the Barriers

Our original article on bank lending to the cannabis industry anticipated that the convergence of interest between banks and the cannabis industry would draw more and larger banks to the industry. Banks were awash in liquidity with limited deployment options, while bankable cannabis businesses had rapidly growing needs for more and lower cost credit. Since then, the pot of gold opportunity for banks to lend into the cannabis industry has grown exponentially due to a combination of market constraints on equity causing a dramatic shift to debt and the ever-increasing capital needs of one of the country’s fastest growing industries. At the same time, hurdles to entry of new banks are being systematically cleared as the yellow brick road to the cannabis industry’s access to the financial markets is being paved, brick by brick, by the progressively increasing number and size of banks that are now entering the market.

2021 EEOC Charge Statistics: Retaliation & Impact of Remote Work

The U.S. Equal Employment Opportunity Commission (EEOC) released its detailed information on workplace discrimination charges it received in 2021. Unsurprisingly, for the second year in a row, the total number of charges decreased as COVID-19 either shut down workplaces or disconnected employees from each other. In 2021, the agency received a total of approximately 61,000 workplace discrimination charges - the fewest in 25 years by a wide margin. For reference, the agency received over 67,000 charges in 2020, and averaged almost 90,000 charges per year over the previous 10 years.

Ohio’s Managed Care Overhaul Delayed – New Implementation Timeline

At the direction of Governor Mike DeWine, the Ohio Department of Medicaid (ODM) launched the Medicaid Managed Care Procurement process in 2019. ODM’s stated vision for the procurement was to focus on people and not just the business of managed care. This is the first structural change to Ohio’s managed care system since the Centers for Medicare & Medicaid Services' (CMS) approval of Ohio’s Medicaid program in 2005. Initially, all of the new managed care programs were supposed to be implemented starting on July 1, 2022. However, ODM Director Maureen Corcoran recently confirmed that this date will be pushed back for several managed care-related programs.

Laboratory Specimen Collection Arrangements with Contract Hospitals - OIG Advisory Opinion 22-09

On April 28, 2022, the Department of Health and Human Services, Office of Inspector General (“OIG”) published an Advisory Opinion[1] in which it evaluated a proposed arrangement where a network of clinical laboratories (the “Requestor”) would compensate hospitals (each a “Contract Hospital”) for specimen collection, processing, and handling services (“Collection Services”) for laboratory tests furnished by the Requestor (the “Proposed Arrangement”). The OIG concluded that the Proposed Arrangement would generate prohibited remuneration under the federal Anti-Kickback Statute (“AKS”) if the requisite intent were present. This is due to both the possibility that the proposed per-patient-encounter fee would be used to induce or reward referrals to Requestor and the associated risk of improperly steering patients to Requestor.