Medical marijuana is being legalized in an increasing number of states, which will have an impact on a variety of employment issues, including workers’ compensation. The Supreme Court appears to be considering providing clarity to employers and employees alike regarding payment for medical marijuana in workers’ compensation claims.
Continue Reading Supreme Court considering granting certiorari in workers’ compensation medical marijuana cases
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Resources and events for employers offered by the Ohio Bureau of Workers’ Compensation
The Ohio Bureau of Workers’ Compensation (BWC) hosts monthly webinars for employers to learn more about workers’ compensation topics. The brief webinars help employers stay up to date on developments in the workers’ compensation system. You can visit the employer webinar webpage on the Ohio BWC website to learn more about upcoming webinars and register to attend.
In addition, the BWC is hosting its Fourth Annual Workers’ Compensation Medical and Health Symposium on April 26-27, 2019 at the Great Columbus Convention Center. There is no cost to attend.
Attendees of the provider clinical education track will have access to state and national medical experts. These experts will speak on topics such as:
Continue Reading Resources and events for employers offered by the Ohio Bureau of Workers’ Compensation
Courts in Massachusetts and Rhode Island permit medical marijuana users to pursue disability discrimination claims
Recent decisions from the Massachusetts Supreme Judicial Court and a Rhode Island Superior Court have held that a discharged employee and a rejected applicant, both of whom tested positive for marijuana, may pursue disability discrimination claims under state law. These are among the first decisions issued that address whether employers have a state law obligation to reasonably accommodate the medical marijuana use of their disabled employees and applicants.
Because marijuana use – whether for medicinal or recreational purposes – remains unlawful under federal law, employers have no obligation under the Americans with Disabilities Act to reasonably accommodate its use by disabled employees or applicants. But what about in states, including Ohio, where medicinal marijuana use is legal under certain circumstances? Is there an obligation to reasonably accommodate marijuana use under state disability discrimination law? Is an employer that takes an adverse action against an applicant or employee who is a medical marijuana user engaging in disability discrimination in violation of state law? It appears that the answer to these questions, at least in Massachusetts and Rhode Island, is yes. For the reasons discussed below, Ohio may be different.
Continue Reading Courts in Massachusetts and Rhode Island permit medical marijuana users to pursue disability discrimination claims
Employers advised to review drug free workplace policy if they intend to prohibit medical marijuana use
As we outlined more fully in our earlier post, Ohio’s new medical marijuana law takes effect next month. Employers should be reminded that business groups lobbied for an exception allowing employers with drug-free workplace policies to take adverse action against applicants and employees for medical marijuana use.
Continue Reading Employers advised to review drug free workplace policy if they intend to prohibit medical marijuana use
Ohio’s new law legalizing medical marijuana includes key exceptions for employers
A special thanks to one of our summer clerks, Abigail Chin, for her assistance with this article.
In the wake of Ohio’s new medical marijuana law, you may be thinking, what does it mean for your drug-free workplace policy? Ohio’s new medical marijuana law, H.B. 523, provides targeted exceptions for employers.
Ohio’s law goes into effect in approximately 90 days; however, it is expected that full implementation could take up to two years before the Ohio Department of Commerce, State Medical Board and Board of Pharmacy can establish licensing requirements for growers, processors, testing laboratories, dispensaries and physicians. H.B. 523 allows people with the following qualified medical conditions to receive a physician’s recommendation for medical marijuana: HIV/AIDS, Alzheimer’s disease, Amyotrophic lateral sclerosis (ALS), cancer, chronic traumatic encephalopathy (CTE), Crohn’s disease, epilepsy or another seizure disorder, fibromyalgia, glaucoma, hepatitis C, inflammatory bowel disease, multiple sclerosis, pain that is chronic, severe and intractable, Parkinson’s disease, post-traumatic stress disorder, sickle cell anemia, spinal cord disease or injury, Tourette’s syndrome, traumatic brain injury and ulcerative colitis. Marijuana is only permitted in certain forms, like edibles and vaporizers; as smoking it is prohibited under the new law.
Continue Reading Ohio’s new law legalizing medical marijuana includes key exceptions for employers
It’s High Times for Employers: The Sixth Circuit Holds Michigan Employers Can Say Nope to Dope
The United States Court of Appeals for the Sixth Circuit ruled in Casias v. Wal-Mart Stores, that the Michigan Medical Marijuana Act ("MMMA") does not regulate private employment and, therefore, did not protect Joseph Casias, a Wal-Mart worker authorized to use marijuana for medical reasons, from being fired after he failed a drug test.
Employers and the courts continue to wrestle with issues involving whether employers must accommodate medical marijuana use by their employees. On one hand, marijuana use is illegal under the federal Controlled Substances Act ("CSA") and, therefore, does not need to be accommodated under the federal Americans with Disabilities Act ("ADA"). However, 17 states currently have legalized some form or another of medical marijuana use: Alaska (1998), Arizona (2010), California (1996), Colorado (2000), Connecticut (2012), Delaware (2011), Hawaii (2000), Maine (1999), Michigan (2008), Montana (2004), Nevada (2000), New Jersey (2010), New Mexico (2007), Oregon (1998), Rhode Island (2006), Vermont (2004), Washington (1998) as well as the District of Columbia (2010). The language of each state’s law can differ, and the courts therefore interpret these state law issues on a case-by-case basis. The Michigan statute is the most recent one to come under judicial review. Here, is the background of that case and how the Sixth Circuit came to the conclusion it did.
In 2008, Michigan voters enacted the MMMA by referendum to provide protection for the medical use of marijuana. It allows only a “qualifying patient” or a “primary caregiver” to whom the state has issued a registry card to use or administer medical marijuana and prohibits, in part, “disciplinary action by a business or occupational or professional licensing board or bureau” against a person to whom the state has issued a registry card for the use or administration of medical marijuana. The key word in the statute for purposes of the Casias case is "business" and here’s why.
Casias started working at Wal-Mart in 2004 as an inventory control manager. He was later diagnosed with sinus cancer and an inoperable brain tumor. Due to his ongoing head and neck pain, he received a medical marijuana registry card and began using marijuana to manage his pain in the summer of 2009. Later that same year, Casias injured his knee at work, went to the hospital and was subjected to a standard drug test pursuant to Wal-Mart’s policy. Prior to the test, Casias showed his card to the testing staff. Well, as you probably guessed, Casias tested positive for marijuana. He showed his shift manager his registry card, and informed his manager that he never consumed marijuana while at work or came to work high. Nevertheless, Casias was fired for failing his drug test.
Casias sued Wal-Mart for wrongful discharge for violating the MMMA. The U.S. District Court for the Western District of Michigan dismissed Casias’ lawsuit finding that the word “business” in the statute does not regulate private employment actions and that the MMMA "contains no language stating that it repeals the general rule of at-will employment in Michigan or that it otherwise limits the range of allowable private decisions by Michigan businesses."
The Sixth Circuit agreed and held that the MMMA prohibits “disciplinary action by a business or occupational or professional licensing board or bureau” against a “qualifying patient.” Focusing on the key term "business," Casias argued that although the MMMA does not expressly refer to employment, the term “business," as used in the MMMA, was independent and expanded the MMMA’s protections to private employers. In other words, Casias argued that Wal-Mart was a "business" and thus fell within the MMMA prohibitions which precluded “disciplinary action by a business or occupational or professional licensing board or bureau” against a person with a medical marijuana registry card.
Wal-Mart countered, arguing that the term "business" modified the phrase “licensing board or bureau,” and that it did not extend the MMMA’s protections.
The Sixth Circuit agreed with Wal-Mart and expressly rejected Casias’ proposed interpretation of the MMMA, which the Court found could prevent any employer in the state from disciplining a qualified patient who uses marijuana under the MMMA. The Sixth Circuit, siding with Wal-Mart, opted not to read the term “business” independently. Rather, it concluded that the word “business,” as used in the MMMA, modified the phrase “licensing board or bureau,” and that the MMMA “is simply asserting that a ‘qualifying patient’ is not to be penalized or disciplined by a ‘business or occupational or professional licensing board or bureau’ for his medical use of marijuana.” Therefore, because the term "business" merely described or qualified the type of “licensing board or bureau"; it did not refer to employment:
Based on a plain reading of the statute, the term "business" is not a stand-alone term as Plaintiff alleges, but rather the word "business" describes or qualifies the type of ‘licensing board or bureau" …. "Read in context, and taking into consideration the natural placement of words and phrases in relation to one another, and the proximity of the words used to describe the kind of licensing board or bureau referred to by the statute, it is clear that the statute uses the word ‘business’ to refer to a ‘business’ licensing board or bureau, just as it refers to an ‘occupational’ or ‘professional’ licensing board or bureau.
The Court further explained that adopting Casias’ argument would create an entirely new protected employee class in Michigan and "mark a radical departure from the general rule of at-will employment in Michigan." Because the case was one involving statutory interpretation, the Court highlighted the importance of carefully crafting groundbreaking legislation like the MMMA, and held that the MMMA does not govern private employment actions. The Court went one and noted that other states including California, Montana, and Washington had also held that their states’ similar medical marijuana laws do not govern private employment actions.Continue Reading It’s High Times for Employers: The Sixth Circuit Holds Michigan Employers Can Say Nope to Dope