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Updates for Employers Regarding Medical Marijuana

Client Alert

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.


Valley National Bank/Trulieve Loan: A Big Step Out of the Shadows

In a late December press release, Trulieve announced that it had secured a $71.5 million commercial bank loan. In addition to the amount of the loan, which may be the largest commercial bank loan to date to a cannabis company, the release prominently identified Valley Bank and featured both a quote from Valley’s Senior Vice President, John Myers, and a description of the Bank’s service platform and commitment to the cannabis industry.

The End of Non-Competes? The Impact It Will Have on the Healthcare Industry

On January 5, 2023, the Federal Trade Commission (“FTC”) announced a proposed rule that, if enacted, will ban employers from entering into non-compete clauses with workers (the “Rule”), and the Rule would void existing non-compete agreements. In their Notice, the FTC stated that if the Rule were to go into effect, they estimate the overall earnings of employees in the United States could increase by $250 billion to $296 billion per year. The Rule would also require employers to rescind non-competes that they had already entered into with their workers. For purposes of the Rule, the FTC has defined “worker” to also include any employees, interns, volunteers, and contractors.”

2022 Healthcare Recap and 2023 Healthcare Check-Up

As the country begins to return to a new “normal” following the COVID-19 pandemic, there are many healthcare rules changing on both the federal and state levels as a result. Thus, it is important for healthcare providers and their employers to be aware of these changing rules, and any implications they may have on their practice. Look back on healthcare in 2022 and find a checklist for 2023.

Direct Support Professional Retention Payments

On December 15, the Ohio Senate and House passed House Bill 45, which authorizes the Department of Developmental Disabilities (DODD), in conjunction with the county boards of developmental disabilities, to launch their initiative to issue retention payments to Direct Support Professionals (DSPs). These retention payments will be distributed quarterly to participating home and community-based waiver providers to address the workforce crisis in the direct provider sector. Governor DeWine needs to sign the Bill to begin the payments, but he is expected to do so by the end of 2022.

Real Estate Investors Position for 2023 Opportunities

Real estate investors weathered another year in a post-pandemic world, with the year closing with yet another interest rate increase coupled with both uncertainty and heightened interest carrying into 2023. Just last Wednesday, the Federal Reserve raised its benchmark interest rate 0.50 percentage points, shifting the target range to 4.25% to 4.50%. The new level is the highest the fed funds rate has been since December 2007 and marks the seventh rate hike this year. So what does this mean to investors, brokers, lenders, and others in the real estate world? Read a few perspectives below from stakeholders familiar with our BMD clients and the markets in which they do business.