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Employer Uncertainty Over Medical Marijuana

The presidential election dominated the election news coverage and overshadowed some of the amendments and their outcomes on election night. One such amendment was Amendment 2 on the Florida ballots which put up for a vote the expansion of medical marijuana. Prior to the passing of Amendment 2, low level tetrahydrocannabinol (THC), was legal for patients with epilepsy, cancer and afflictions causing seizures or severe and persistent muscle spasms. The passing expands it to patients diagnosed with post-traumatic stress disorder, cancer, glaucoma, HIV, AIDS, amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease and multiple sclerosis. Florida is home to an estimated 500,000 patients who would be eligible for the treatment, making it the second-largest market in the country.

There is still a lot to be done before doctors begin to prescribe medical marijuana to patients. Florida lawmakers need to draft rules for how the law will be implemented and regulated, a process that will begin in March. Lawmakers have until July 2017 to pass regulations with the Florida Department of Health and the state has until October 2017 to begin to register growers, dispensaries and patients.

There are also questions around how Amendment 2 will impact disability discrimination claims and the Americans with Disabilities Act, wrongful termination claims, off-duty activity statuses, and unemployment insurance benefits. There are many unanswered questions at this point, but the court system has begun to provide a framework for analyzing these issues.

Regarding workplace policies, the legalization of medical marijuana does not affect employers’ rights to retain zero-tolerance drug and alcohol policies.  As with alcohol and other drugs, you may still prohibit employees from using marijuana at work and reporting to work under the influence of marijuana.  You will want to take this time to review your drug policies and ensure you are not violating any nondiscrimination laws; and that you consistently enforce the policy.

Workers’ Compensation is another area that faces uncertainty. If a post-accident drug test has a positive result, the injured worker may have their workers’ compensation benefits denied. Although, given that THC stays in a person’s system for approximately 30 days, insurers are hesitant to deny claims where there was a positive result of THC as it will be unclear as to when it entered the system. Another challenge is in regards to compensable claims as doctors may opt to prescribed medical marijuana in lieu of opioids in the near future. Insurers review medical treatment appropriateness using Office of Disability Guidelines (ODG) which sets forth the criteria of treatment needed prior to authorization of a medication. These guidelines are determined only after extensive research concludes its benefit. At this point, the research of medical marijuana has not reached the level to where it is an approved treatment by ODG.

Employers are in a difficult position as the laws continue to change around recreational and medical marijuana. It is important that they do not violate the rights of their employees, but they need to understand their rights and obligations. The courts will be addressing these issues, but until the law surrounding marijuana is well-settled, it is important to be well-versed in your state’s developing law and to educate your employees.

More information to come regarding an upcoming webinar on this topic. 

If you would like to learn more today, please reach out to your BKS Advisor at Baldwin Krystyn Sherman Partners at 813.984.3200.