What Ohio employers need to know now that medical marijuana is legal

This past September, Gov. John Kasich signed Ohio House Bill 523, which continued the nationwide trend of states legalizing medical marijuana. The new law allows people with one of 20 qualifying conditions to use marijuana with a doctor’s recommendation.

“Employers may still establish and enforce drug-free workplaces that prohibit and test for any drug that is illegal under federal law, and employees under the influence of marijuana are still not covered by workers’ compensation,” says Stephanie McCloud, government/industry relations counsel at CompManagement.

Smart Business spoke with McCloud about this new law and what employers should do now.

When does the law actually become operable?

The state officially began establishing the Medical Marijuana Control Program, which will serve as the infrastructure to regulate the industry, on Sept. 8, 2016. Patients with one of the 20 qualifying medical conditions will not actually gain access from within the state to medical marijuana until the program is established, which is expected to be no more than two years after the effective date.

Who will regulate the law?

The Ohio Department of Commerce will regulate the licensure of medical marijuana cultivators and processors, as well as the laboratories that test medical marijuana. The State of Ohio Board of Pharmacy will license retail dispensaries and register patients and their caregivers. The State Medical Board of Ohio will regulate physicians’ requirements and procedures for applying for and maintaining certificates to recommend medical marijuana. It will also maintain the list of conditions for which medical marijuana can be recommended.

What are the impacts of the new law related to workers’ compensation?

Impacts are limited to Ohio’s workers’ compensation system and the Ohio Bureau of Workers’ Compensation’s (BWC) Drug-Free Safety Program is not affected. The law does not require BWC to pay for patient access to marijuana nor is an employee found to be under the influence of marijuana covered by workers’ compensation.

Is medical marijuana reimbursable under workers’ compensation if recommended for an injured worker?

Although the law does not address reimbursement for medical marijuana that may be recommended for injured workers, there are already rules and statutes that limit what medications are reimbursable by BWC. Drugs covered by BWC are limited to those that are approved by the Food and Drug Administration. Marijuana has not been approved and remains a Schedule I illegal drug under federal law. In addition, prescriptions funded by BWC must be dispensed by a registered pharmacist from an enrolled provider. Under the new law, medical marijuana will be dispensed from retail marijuana dispensaries, not from enrolled pharmacies.

Is an injury compensable if the injured worker is found to be using marijuana for medical purposes?

The law does specify that marijuana is covered under ‘rebuttable presumption,’ which means that an employee whose injury was the result of being under the influence of marijuana is not eligible for workers’ compensation. This is the case regardless of whether the marijuana use is recommended by a physician.

What should employers do now?

There are certain sections of the new law that reference the use of medical marijuana in violation of an employer’s drug-free workplace policy, zero-tolerance policy or other formal program or policy. If employers do not have a drug-free workplace policy in place, now is the time to do so. If an employer does have an existing policy, now is also a good time to review it and update as necessary.

This article is informational only and should not be construed as legal advice.

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