One week after Ohio’s Medical Marijuana Control Program patient registry opened, over 2000 patients have been registered and retail dispensaries are expected to open in sixty days.
Employers who have not yet addressed a medical marijuana policy can no longer afford to delay.
Does my company need a written policy?
House Bill 523 makes it clear that Ohio employers, who plan to enforce a medical marijuana protocol, must have a written policy and it must be communicated to employees prior to enforcement. It’s important to note that the written policy is required for all situations with medical marijuana, including when the workplace is planning an accommodation for use.
Having a written policy goes far beyond the medical marijuana law in Ohio, however. With the current state of opioid misuse, the significant rise of cocaine and methamphetamine overdoses and a benzodiazepine misuse epidemic on the horizon, it is more important today than ever before for an employer to protect their business. And that means allbusinesses - even those who don’t currently require their employees to drug test. Without a policy in place, the employer will have difficulty enforcing a situation if an employee reports to work impaired.
Know the Law for Your Workplace
House Bill 523 does not interfere with the right of the employer to have a drug free program (including the Drug Free Safety program) and zero tolerance discipline policies can continue. Employers are allowed to ban all use and terminate employees who violate the policy or can also choose to accommodate some use, as well. They are under no obligation to hire an applicant who uses medical marijuana.
If the organization is required to comply with a federal authority, like the DOT, or is a federal grant recipient, marijuana remains illegal. Individual contracts may also prohibit the use of medical marijuana. Multi state employers should know the laws in each state. What is required in Ohio may not be allowed in other states and more than one policy may be necessary.
What’s an employer to do?
There’s no “one size fits all” answer to the medical marijuana policy question. While banning the medical use of marijuana may seem to be the simple choice, every company is different and there are some important factors that need to be considered. For example, a company with only administrative type jobs may choose to allow use since the safety risk is low. In a factory with a high incidence of injuries, banning use on all levels is probably more appropriate. In some areas, hiring has been difficult due to the booming economy and low unemployment rate, making retention of current employees very important. And, one of the hardest situations of all: the company with a Last Chance Agreement disciplinary policy. Does it make sense to allow an employee who tests positive for cocaine to keep their job while immediately terminating the employment of a different employee who is in legal compliance with the Ohio Medical Marijuana Control Program? These are just some examples that employers must consider before settling on a policy in their company.
Many employers have already reported situations involving the use of medical marijuana. Contact your drug free consultants and legal counsel to ensure your organization is making the best decision for your company.
Current training clients of First Connect: We help you work through the medical marijuana policy issues at no charge. Get in touch with our offices today!
New to First Connect? We have low fee support services that can help with your policy. Call us today for more information.
Late last week, OSHA issued compliance guidance in an attempt to clarify the department’s position.
In May of 2016, OSHA finalized the new recordkeeping regulation and, with it, included a provision meant to prevent an employer from retaliating against an employee who reports a work related injury. While the original provision never mentioned blanket post accident drug and alcohol testing policies specifically, the final regulation’s preamble addressed exactly that. It was the preamble that left employers questioning whether their blanket post accident testing would open their organization up to substantial fines.
Last week, from OSHA:
“29 C.F.R. §1904.35()(1) (iv) does not prohibit workplace safety incentive programs or post-incident drug testing. The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. §1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”
Since the clarification, we’ve had many calls from confused employers – and rightly so. Although the above guidance may have loosened the testing reins in certain situations, it certainly does not walk back the prior guidance completely. Instead, the latest from OSHA reinforces the need for an employer to test only when there’s a legitimate business need and, above all, for the employer to be consistent when making testing decisions in similar situations. In other words, nothing has really changed.
In the last two years, many employers have come to realize that a blanket testing policy, while easier to manage, has never been a good business decision. In blanket testing, employers often had standing orders in the office of their treatment provider that gave the go ahead to test any employee who presented for treatment of a work related injury – regardless of the cause. Employees who presented for the treatment of a bee sting, for example, or those who were injured as a result of a co-workers’ negligence, very often, had to submit to testing. Employees who presented for treatment days or even weeks after the injury also had to submit to testing. Having such a decisive policy has, over the years, resulted in causing issues for a decision the employer did not directly make and consequences that their policy may not be prepared to support.
Where do we go from here?
This is not the last time we’ll be hearing about this particular regulation. At this writing, there are still two lawsuits that were put on hold by the courts while the current administration reviewed the rule. It is still quite possible that the entire rule will be walked back. But, until that time, employers should continue to only require post accident testing when there is reason to believe that drugs or alcohol are involved. To ensure consistency, use a checklist for every injury and document the information that led to the decision to test or not test. Take time to train your supervisors, as well. Their documentation, if they decide to require a test, will not only cover OSHA’s requirement but may also help your case if there’s a reason to challenge the claim. So train your supervisors to be detailed!
Drug Free Safety Program Participants
The recently released guidance also mentions, again, that there are exceptions that allow for a blanket testing policy, including participation in a workers’ compensation discount program. This is just a reminder that Ohio’s Drug Free Safety Program does not now nor has it ever required testing after every injury. While it was common for employers in the DFSP to have blanket testing policies, the Drug Free Safety Program’s Self Implementation Guide (page 17) is quite clear in stating that there are situations when testing is not required. In other words, continue to follow OSHA’s requirements until otherwise noted.
Note: The guidance also included information on safety incentive programs. For more information, visit OSHA's Website: Clarification on OSHA's Position.
For questions, please contact our offices.
Ohio's medical marijuana program has hit a snag. Because of a delay in issuing certificates to grow centers and processors, product will not be available to patients on the required roll out date of September 8th. The state has also delayed implementing the patient portal for registration until closer to the time when product will be ready. To date, almost 200 doctors have been certified to recommend medical marijuana.
What employers need to know
While the program has hit a delay, we've experienced an increase in calls from employers who have encountered a situation involving medical marijuana use by an employee. The law does provide an "affirmative defense", allowing patients found to be in possession to make the argument that they meet the conditions of the law before the law goes into effect. Some have an "Affirmative Defense" letter issued by their doctor as proof of compliance.
Employers should prepare now.
Under the new law, employers are under no obligation to permit use by employees or allow possession of medical marijuana at the worksite. Employers don't have to (and should never) allow an employee who is impaired to continue to work. Drug Free Workplace programs (Including the Drug Free Safety Program) are not affected and those who have zero tolerance policies for a testing positive can continue this discipline policy. And, while an employer can decide whether their own organization will completely ban use or accommodate use for employees, the law is clear that there must be a written policy and it must be communicated to employees prior to enforcement. Without it, employers won't have a leg to stand on. Whether your company is thinking about banning the use altogether or accommodating use for employees, we strongly recommend that all organizations make developing a medical marijuana policy an immediate priority before a situation occurs.
If you have not yet attended our webinar "Medical Marijuana in the Workplace" (free of charge), we will be presenting it again on August 23 (Register Here) . For our current training clients, assistance in updating your policy is covered under your support services and always free of charge to you. For other employers, contact our offices - we can help you too!
It's time for all DOT companies to ensure they are ready for the new Chain of Custody forms starting on July 1. DOT drug tests completed on the wrong form after June 30 will require the lab will be required to submit a memorandum for the record and will cause a delay in processing.
The new Chain of Custody form mirrors the January 1, 2018 DOT changes. If your company is not currently using eCCF (electronic), it's a good time to check with your testing provider about making the switch. The eCCF will reduce mistakes and paperwork and ensure faster drug screen collections.
For more information on this required change, visit the U.S. Department of Transportation website: U.S. DOT
First Connect has scheduled three webinars on the upcoming Medical Marijuana law and a Bootcamp for employers with drug and alcohol testing programs. "Medical Marijuana in the Workplace: Are you ready for Sepetember?" will be presented on June 14 and July 12. During the webinar, we will review the ins and outs of the new law, the responsibilities of the employer and best practices in your workplace.
Both webinars are a part of our Featured Webinar Series and are free of charge to employers. To register, visit our "Webinar Schedule" page.
The U.S. Department of Transportation has issued a final rule expanding DOT's current drug testing panel to include semi-synthetic opioids: hydrocodone, hydromorphone, oxymorphone and oxycodone on the required drug testing panel for DOT regulated industries. The drugs are more commonly known as OxyContin, Percodan, Percocet, Vicodin, Lortab, Norco, Dilaudid and Exalgo. Employees will no longer be tested for MDEA.
As required by the Omnibus Transportation Employee Testing Act of 1991, the DOT is harmonizing with the Department of Health and Human Services revised Mandatory Guidelines on Federal Testing Programs. The change will also clarify existing drug testing provisions, make technical amendments and removes the requirement for employers and Consortium/Third Party Administrators to submit blind specimens.
What employers need to know
The HHS certified labs performing DOT tests will make the change to all testing beginning on January 1, 2018. Employers with concerns should contact their collection locations or drug testing third party administrators for guidance.
Important Note: NON DOT tests are not affected by this change, however, in light of the current opiate abuse epidemic, we strongly recommend that all employers expand opiate testing to include the above listed drugs. To expand opiate testing, contact your drug testing provider.
If you have any questions regarding this change, please contact our offices.
At the end of June, OSHA published a notice in the Federal Registrar proposing a delay to the required reporting of illness and injury data under the Record Keeping Rule. OSHA has also signaled that other portions of the rule may be under review and/or revised.
Additionally, In two separate lawsuits challenging the anti retaliatory portion of the rule, the federal district courts have issued a stay in litigation while OSHA considers whether to review and/or revise all or part of the rule. This is the portion of the Record Keeping Rule that will affect incentive programs and post accident testing.
What employers need to know
The delay only affects the effective date of the reporting of illness and injury requirement. While OSHA is considering reviewing and/or revising other sections of the Record Keeping Rule, nothing official has come from OSHA. Employers should continue to follow the current protocol and only require a post accident drug test when there's reason to believe that drugs or alcohol may have been contributed to the cause of the injury.
We will continue to monitor the situation and send an update as soon as information is made available.
We had such an overwhelming demand on our webinar: "Don't Get Fined: Ohio's Medical Marijuana Law and OSHA"s Position on Post Accident Testing", that we scheduled a second session. To register, click the link below and we thank you for making this course so popular!
Webinar: Don't Get Fined: Ohio's Medical Marijuana Law and OSHA's Position on Post Accident Testing
Date: Tuesday, December 20 at 1 pm
Seating is limited. Pre-registration is required.
Click here to register for the December 20th session.
Featured Webinar Schedule:
"Don't Get Fined! Medical Marijuana in Ohio and OSHA's position on Post Accident Testing"
12/14 at 9 am or 12/20 at 1 pm
Injury Nurse Triage: The Missing Piece for an Effective Workers' Compensation Program
1/25 at 9 am
"Transitional Work Grant and Bonus Program: Right for your Company?"
2/22 at 9 am
Managing a Drug Free Workplace in a Heroin and Prescription Drug Epidemic
3/15 at 9 am
To register, please visit our website: Webinar Schedule
Webinar: "Don't Get Fined! Medical Marijuana in Ohio and OSHA's Position on Post Accident Testing" Scheduled for 12/14
OSHA's position on post accident testing could bring big fines if your company is not in compliance and Ohio's new medical marijuana law is leaving employers perplexed. Join us for a one hour webinar where we will review it all!
Seating is limited. Pre registration is required. Register here: Webinar Registration.
Featured Webinars Schedule:
For more information or to register for our Featured webinars: First Connect Webinar Schedule
Ohio's Drug Free Safety Program doesn't exempt your company from OSHA's position on post accident testing
,A few weeks ago, we received an inquiry from one of our partners asking about OSHA's position on post accident testing and whether Ohio employers in the Drug Free Safety Program (DFSP) needed to comply. It seems one of his employers had attended an education session where the speaker addressed the new OSHA rule. In doing so, the speaker stated that employers in the DFSP were exempt from compliance with the post accident testing provision addressing automatic testing policies. The generality of the statement by the speaker leads employers in Ohio down a dangerous path.
First, OSHA's position on post accident testing addressed in the new recordkeeping rule makes having an automatic testing policy on all injuries a violation of the final rule. The rule "encourages" employers to only test when there is reason to believe that drugs and/or alcohol may be involved. While it is true that, on October 19, OSHA clarified their position on employers exempt from the rule to include those participating in state workers' compensation discount programs, Ohio's Drug Free Safety Program does not require an automatic testing policy after an injury.
From the Drug Free Self Implementation Guide (pages 16 and 17):
"BWC provides what we consider to be an “intelligent-testing design.” As such, even after conducting an accident investigation and determining who may have caused or contributed to a work-related injury, we do not require employers to order a post-accident test if all the following apply:
To better understand the DFSP requirement, let's use a simple example: A nurse hurts her back while lifting a patient. In an automatic testing policy, the nurse would be required to test. However, following the DFSP language above: if the injury is common to the nurse’s job (it is), there's no violation of work rules (there is not) and there’s no reason to believe that drugs or alcohol are involved (there is not), no test would be conducted.
Using the example provided above, it's easy to see that the DFSP only requires the same type of decision making process when an injury occurs that OSHA supports - not an automatic testing policy.
For many years, employers in Ohio have utilized an automatic testing policy after an injury requiring medical treatment. Nobody has told them that they have to, it's just become common practice. The automatic testing policy has never been a problem because the practice goes beyond what the BWC requires. But now that OSHA is on the scene and without a DFSP requirement to protect participants, those employers with an automatic testing policy are running afoul of OSHA's anti retaliatory provision and the consequences can be harsh. Unless regulated, employers should abandon the practice of automatic testing and move to a procedure and policy that allows discretion when requiring a test. More from our blog here: New Anti Retaliatory Rule Affects Post Accident Testing Policies.
Update: A federal judge has denied a preliminary injunction request and enforcement of the anti retaliatory provision in the recordkeeping rule is set to go forward on December 1. While there may be updates on the rule at a later time and the change in presidential administration may impact the rule after the first of the year, employers should ensure compliance with the new rule immediately.