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Everything you need to know about BMD and the industry.

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.

Changes to Physician Assistant Statutes in Florida

In the last year, there have been many changes to the scope of practice and collaboration/supervision requirements for advanced practice providers such as APRNs and physician assistants in the state of Florida. In a previous Client Alert we discussed House Bill 607, which expanded the autonomous practice of APRNs providing primary care services in Florida.

Ohio Senate Bill 49 – Ohio Expands Lien Rights for Design Professionals

Effective September 30, 2021, Ohio granted limited lien rights to design professionals, including architects, landscape architects, engineers, and surveyors. Ohio Governor Mike DeWine signed Senate Bill 49 into law on July 1, 2021. This new law established a statutory right to lien commercial real estate by Ohio design professionals who, until now, could not file a lien for non-payment of professional services. Senator Vernon Sykes, a primary sponsor of Senate Bill 49, stated that the “legislation ensures that architects, engineers and other designers will get paid for their work, regardless of the outcome of their projects . . . It will support hardworking Ohioans by protecting the value of their labor . . ..”

Primary Care Practice Officially Defined in Florida for APRNs Practicing Autonomously

As many providers in Florida are aware, House Bill 607 (the “Bill”), which was passed in February of last year, gives certain APRNs in Florida the ability to practice autonomously. The only catch is that they must work in primary practice. When the Bill was initially passed, there was question as to what was exactly considered primary care, absent a definition from the Florida Board of Nursing. However, as of February 25, 2021, “primary care practice” has officially been defined.

Part II of the No Surprises Act

The Department of Health and Human Services (“HHS”) published Part II of the No Surprises Act on September 30, 2021, which will take effect on January 1, 2022. The new guidance, in large part, focuses on the independent dispute resolution process that was briefly mentioned in Part I of the Act. In addition, there is now guidance on good faith estimate requirements, the patient-provider dispute resolution processes, and added external review provisions.

Safer Federal Workforce Task Force - Guidance for Federal Contractors and Subcontractors

The Safer Federal Workforce Task Force has issued its Guidance for Federal Contractors and Subcontractors (Guidance). Note that the Guidance applies only to “covered contracts,” which are contracts that include the clause (Clause) set forth in Sec. 2(a) of Executive Order 14042 (Ensuring Adequate COVID Safety Protocols for Federal Contractors). The Federal Acquisition Regulatory Council (FARC) is to conduct rulemaking and take related action to ensure that the Clause is incorporated into federal contracts. Until that happens, federal contractors likely will not see the Clause in its contracts. Following is a broad summary of the Guidance.