Ohios Medical Marijuana Law and Employment Implications Brice - - PowerPoint PPT Presentation

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Ohio’s Medical Marijuana Law and Employment Implications

Brice Smallwood & Brian Higgins | Greater Hamilton Safety Council | December 4, 2019

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Frost Brown Todd LLC

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Brian Higgins

• Health Care Attorney

1. Advised health systems, senior living facilities, and physicians on medical marijuana law. 2. Counsels clients on Stark law/Anti-kickback statute, and HIPAA/privacy concerns. 3. Assists healthcare clients on corporate transactions. 4. Advises on general healthcare regulatory issues. 5. Experience at Medpace, Inc. and The Christ Hospital.

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Brice Smallwood

• Labor and Employment Attorney

1. Helps employers navigate the myriad of issues that arise from having employees. 2. Aid employers in understand the intersection of the ADA, the FMLA, workers’ compensation, and state leave laws and why we’re not going to fire that employee yet. 3. Works with employers to develop and draft comprehensive polices related to medical marijuana and drug testing based on the needs of the employer, the industry, and the need to find employees who can pass a drug screen. 4. Regularly assists employers in the healthcare industry regarding human resources issues and balancing employee rights with patient needs.

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Let’s have some pun

It was high time Ohio passed a medical marijuana law. By no means a trailblazer, Ohio is still one of the earlier midwestern states to pass this type of legislation. Today, we will get into the weeds on what the law says. Put bluntly, it creates a tightly rolled regulatory scheme where the joint efforts of the program’s licensees and the State will define its success. Industry stakeholders have high hopes the law will lead to a pot of gold and plant the seed for recreational use in the future, while opponents hope the budding marijuana industry goes up in smoke. I will try and clear the legal haze for you this morning.

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Today’s Agenda

• 1. Cannabis, generally
• 2. Overview of Ohio’s medical

marijuana program

• 3. How federal law impacts Ohio’s

medical marijuana program

• 4. Implications the program has for

employment

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Cannabis, generally

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Cannabis, generally

• 1. Cannabis is the name of a plant family.
• 2. Hemp and marijuana fall under the cannabis plant family umbrella.

a. Hemp contains trace amounts of tetrahydrocannabinol (THC) and increased amounts of cannabidiol (CBD). b. Marijuana contains increased amounts of THC and decreased amounts of CBD.

• 3. No FDA-approved natural cannabis-derived products except for

Epidiolex, which contains CBD derived from the marijuana plant.

• 4. Epidiolex treats Dravet syndrome and Lennox-Gastaut syndrome, two

conditions associated with seizures.

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Cannabis, generally (continued)

• 1. Hemp legalization

a. Federal Farm Bill 2018 legalized hemp and hemp-derived products (hemp- derived CBD oil) and permanently removed hemp from federal drug control. b. “Hemp” means cannabis with less than 0.3% THC. c. Ohio Senate Bill 57 legalized hemp and hemp-derived products at the state level. d. “… [a]ny person may, without a hemp cultivation license or hemp processing license, possess, buy, or sell hemp or a hemp product.” e. Before Senate Bill 57 passed, hemp and hemp-derived products could only be legally sold under state law at an Ohio licensed medical marijuana dispensary.

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Cannabis, generally (continued)

• 1. Hemp and hemp-derived products are legally sold in Ohio retail stores.
• 2. Marijuana and marijuana derived products are sold in Ohio licensed

medical marijuana dispensaries.

• 3. Note that Ohio will be accepting applications to obtain a license to

grow and process hemp soon.

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An overview of Ohio’s medical marijuana program

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An overview of Ohio’s medical marijuana program

1. Authorizes the recommendation, cultivation, processing, sale, and use of marijuana for medical purposes. 2. 29th State plus D.C. to legalize medical marijuana 3. Patient estimates of 200,000+ (source: Ohio Medical Marijuana Control Program)

This Photo by Unknown Author is licensed under CC BY-SA-NC

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An overview of Ohio’s medical marijuana program (continued)

Photo Source: https://www.medicalmarijuana.ohio.gov/

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An overview of Ohio’s medical marijuana program (continued)

• 1. Cultivators
• a. 9/19 level I operational
• b. 9/13 level II operational
• 2. Processors – 12/41 processors operational
• 3. Dispensaries – 45/57 operational
• 4. Laboratories – 3/5 operational

*Data as of October 31, 2019

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An overview of Ohio’s medical marijuana program (continued)*

• 1. ~ 46,000 total physicians in Ohio, only 584

certified to recommend

• 2. ~ 69,000 patients registered with

recommendations

• 3. ~ 46,000 unique patients made purchases
• 4. 200,000 patients / 527 physicians = ~ 342

patients per physician

*Data as of October 31, 2019

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An overview of Ohio’s medical marijuana program (continued)*

• Patient Demographics

1. 4,739 Patients with Veteran Status 2. 3,238 Patients with Indigent Status 3. 401 Patients with a Terminal Diagnosis

*Data as of October 31, 2019

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Ohio Physician- CTR Map as of August 12, 2019

https://med.ohio.gov/Publicati

• ns/CTR-Search

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10,910 2,622 1,973 1,082 998 555 387 445

2,000 4,000 6,000 8,000 10,000 12,000

Top 8 Ohio Medical Marijuana Qualifying Medical Conditions by Patient*

*Data as of February 2019

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An overview of Ohio’s medical marijuana program (continued)

• 1. Day 1 sales (Jan. 16) = > $75,000 (only 4

dispensaries)

• 2. Total sales (Jan. 16 – Nov. 17) =

$43,100,000

• 3. Total volume of product = 5,175 pounds
• f plant material

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Critical points about Ohio’s medical marijuana program

• 1. Patients/caregivers responsible for storage

to prevent theft, loss, or access by persons not authorized by law.

• 2. Prohibits the disqualification of a patient

from medical care or transplant list.

• 3. Medical marijuana made a Schedule II drug

(with Adderall and morphine).

This Photo by Unknown Author is licensed under CC BY-SA-NC

O.R.C. § 3796 et. seq.

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Critical points about Ohio’s medical marijuana program (continued)

• 4. Professional immunization from

disciplinary action for engaging in professional or occupational activities related to medical marijuana.

• 5. Patient/caregiver not subject to

arrest/criminal prosecution for medical marijuana related conduct.

• 6. Ohio residency required.

This Photo by Unknown Author is licensed under CC BY-SA-NC

O.R.C. § 3796 et. seq.

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Critical points about Ohio’s medical marijuana program (continued)

• 7. Physicians are not required to provide

instructions for use (dosages and forms) – look to the “budtenders.”

• 8. Public places are not required or prohibited

from accommodating a patient’s use of medical marijuana.

• 9. 21 qualifying medical conditions to get a

recommendation.

O.R.C. § 3796 et. seq.

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Qualifying medical conditions

AIDs, Alzheimer's disease, Amyotrophic lateral sclerosis; Cancer; Chronic traumatic encephalopathy; Crohn's disease; Epilepsy or another seizure disorder; Fibromyalgia; Glaucoma; Hepatitis C; Inflammatory bowel disease; Multiple sclerosis; Pain that is either of the following: (i) Chronic and severe; or (ii) Intractable; Parkinson's disease; positive status for HIV; Post-traumatic stress disorder; Sickle cell anemia; Spinal cord disease or injury; Tourette's syndrome; Traumatic brain injury; and Ulcerative colitis.

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Qualifying medical conditions (continued)

• 1. State medical board rejected

depression, insomnia, opioid addiction, anxiety and autism

• 2. NY, CA, and PA on opioid

addiction

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How will a patient get medical marijuana?

1. Schedule appointment; 2. Be evaluated by physician with certificate to recommend; 3. Be diagnosed with qualifying medical condition; 4. Receive a recommendation and have physician register patient (pay for card -- $50 pt., 25$ c.g.); and 5. Purchase product at dispensary.

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The recommendation

• 1. Recommendation good for 90 days and

may be refilled 3 times for a period of 90 days.

• 2. At least one in-person visit annually.

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The in-person evaluation

• Physician must:
• 1. assess medical history, Rx history, SUD

history;

• 2. review current medications for

interactions;

• 3. perform physical examination relevant to

patient’s current medical condition; and

• 4. determine whether patient suffers from

qualifying medical condition.

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The in-person evaluation (continued)

• If qualifying medical condition diagnosed (or

confirmed), then physician must: 1. develop treatment plan; 2. review OARRS report (review for indicators

• f possible abuse or diversion);

3. explain risks and benefits of treatment; 4.

• btain the patient's consent prior to

completing a recommendation; and 5. determine whether patient needs a “caregiver.”

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What is a “caregiver?”

• 1. Authorized to purchase, possess, and

administer medical marijuana.

• 2. Must be 21 years old.
• 3. Patient <18? Necessity.
• 4. Magic Number is 2.

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What is a “caregiver?” (continued)

• BOP may permit a caregiver to serve more

than two patients, and for a patient to designate more than two caregivers:

• 1. In order to avoid unnecessary hardship

to the patient or patients; OR

• 2. Where the patient's care is being

provided in a licensed hospice program.

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Methods of administration

• 1. No smoking/combustion
• 2. Vaporization permitted
• 3. Ingestion
• 4. Topical

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Forms of medical marijuana available:

• 1. Oils
• 2. Tinctures
• 3. Plant material
• 4. Edibles
• 5. Patches

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Impact of federal law on Ohio’s medical marijuana program

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The Federal Controlled Substances Act

• Designates marijuana as Schedule I controlled

substance (along with LSD (“acid”) and heroin):

• 1. High potential for abuse.
• 2. No currently accepted medical use in

treatment.

• 3. There is a lack of accepted safety for use
• f the drug under medical supervision.

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What does the Federal Controlled Substances Act prohibit?

1. Pretty much everything that Ohio’s medical marijuana law allows. 2. Prohibits possessing, prescribing, distributing, dispensing, and administering marijuana. 3. Prohibits conspiring to violate, and aiding and abetting the violation of, the CSA. 4. Prohibits leasing, renting or controlling a place where marijuana is used, subjecting a violator to asset forfeiture, including real property and leasehold interests.

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Legal implications for a violation of the Federal Controlled Substances Act

1. Imprisonment and fines 2. Loss of federal benefits, contracts, licensure, grants and payments (Medicare/Medicaid enrollment) 3. Loss of federal tax exemption 4. Loss of industry accreditations

This Photo by Unknown Author is licensed under CC BY-NC-ND

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Federal enforcement actions against doctors/facilities/patients for violating the Controlled Substances Act

• 1. 30+ jurisdictions with medical marijuana –

no examples?

• 2. Massachusetts doctors crossed line.

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Why has federal law enforcement been so limited?

• 1. The Rohrabacher Amendment
• 2. Prescription v. recommendation
• 3. The Cole Memorandum

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Restraints on Federal law enforcement – The Rohrabacher Amendment

1. Biggest restraint. 2. Included in federal government’s spending bill. 3. Prohibits DOJ from using federal funds to interfere with those strictly complying with a state’s medical marijuana law. United States v. McIntosh, 833 F.3d 1163, 1179 (9th Cir. 2016). 4. However, violations can be prosecuted for up to 5 years after occurrence.

This Photo by Unknown Author is licensed under CC BY-NC-ND

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Restraints on Federal law enforcement – “prescription” v. “recommendation”

1. Ohio physicians do not “prescribe” medical marijuana, they “recommend” it. 2. Derived from Conant v. Walters, 309 F.3d 629 (9th Cir. 2002) decision. a. Federal government cannot prosecute physicians or revoke a DEA license for a recommendation. b. First amendment right.

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Restraints on Federal law enforcement – the Cole Memorandum

1. Guided U.S. attorneys to only enforce federal marijuana laws in certain situations: a. prevent distribution to minors; b. prevent marijuana money from going to gangs; and c. prevent diversion from legal states to non-legal states. 2. Rescinded in January 2018 by former Attorney General Jeff Sessions.

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Federal law enforcement under current attorney general

• 1. William Barr
• 2. Former A.G. from 1991-1993
• 3. “Will not go after those who relied on Cole

Memorandum”

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STATE AND FEDERAL LAW TAKE AWAYS

Even though Ohio law makes medical marijuana legal, federal law is supreme and still designates marijuana as illegal. However, the federal government’s enforcement of marijuana laws has been limited due to various restraints. This does not mean such enforcement will remain limited,

• though. “It depends.”

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Employment Implications

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Zero-Tolerance Policies

• Zero tolerance policies are still permitted under Ohio law
• Ohio’s law
• Does not require an employer to permit or accommodate an employee’s use of

medical marijuana

• Does not prohibit an employer from taking adverse employment action against

an employee for use of medical marijuana

• Does not prohibit an employer from establishing and enforcing a zero-tolerance

drug policy

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Workers’ Compensation

• Ohio’s law does not affect

the authority of the administrator of workers’ compensation

• Rebates or discounts on

premium rates may still be granted to employers that participate in a drug-free workplace program

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BWC Drug-Free Safety Program

• Offers eligible employers a premium rebate

for implementing a loss prevention strategy addressing workplace use and misuse of alcohol and drugs

• In addition to satisfying other requirements,

the employer's program must include alcohol and drug testing, including

• pre-employment and new-hire drug

testing,

• post-accident alcohol and drug testing,
• reasonable suspicion alcohol and drug

testing, and

• return-to-duty and follow-up alcohol

and other drug testing.

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Rebuttable Presumption

• Ohio law maintains an employee’s

ineligibility for compensation and benefits if the employee was under the influence of marijuana and being under the influence of marijuana was the proximate cause

• f the injury
• This applies regardless of whether

the marijuana use is recommended by a physician

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Unemployment Eligibility

• Employees discharged for

their use of medical marijuana in violation of employer’s workplace drug policies will be considered discharged for just cause

• Such employees will not be

eligible for unemployment compensation

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Laws Prohibiting Adverse Employment Action

• 15 states prohibit employers from taking adverse employment action

based on obtaining a medical marijuana card

• Arkansas, Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada,

New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island, West Virginia

• This includes terminating, refusing to hire, or disciplining an employee

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Drug Testing

• State marijuana laws have altered drug testing policies
• As of January 1, 2020, Nevada prohibits pre-employment drug testing

for marijuana

• “It is unlawful for any employer in this State to fail or refuse to hire a

prospective employee because the prospective employee submitted to a screening test and the results of the screening test indicate the presence

• f marijuana.”

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Zero-Tolerance Policies

• Whitmire v. Wal-Mart Stores, Inc. (2019) (Arizona)
• Employee terminated for testing positive for marijuana
• Employers cannot terminate for a positive test unless the employee was

impaired by marijuana while at work

• Impairment cannot be shown solely by the presence of marijuana in a

drug test

• Key is to focus on impairment

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Cases from the Northeast

• Barbuto v. Advantage Sales and Marketing (2017)(Massachusetts)
• Job offer contingent upon passing a drug test
• Employee was fired after she failed a drug test because she used medical

marijuana to combat Crohn’s disease

• Crohn’s disease is a disability under Massachusetts law
• Employer required to engage in the interactive process to determine if a

reasonable accommodation could be made

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Tips for Employers

• Know the laws in your state
• Discipline for impairment at work
• Identify safety sensitive positions
• Revise handbook and drug testing policies
• Consistently apply handbook and drug testing policies
• Department of Transportation’s drug and alcohol testing regulations

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thank you

Brice Smallwood

bsmallwood@fbtlaw.com 513.651.6751 301 East Fourth Street Great American Tower, Suite 3300 Cincinnati, Ohio 45202

Brian Higgins

bhiggins@fbtlaw.com 513.651.6839 301 East Fourth Street Great American Tower, Suite 3300 Cincinnati, Ohio 45202

This presentation is for informational purposes only and is not intended as legal advice. If you desire legal advice about the information in this presentation, please contact your attorney.

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Questions?

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Thank you

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