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Patchwork of Marijuana Laws Across the Country Affects Employers Differently

Friday, October 26, 2018

In Ohio, medical marijuana is now legal. Ohio employers are STILL ABLE to enforce drug free workplace policies for medical marijuana use.

Ohio has NOT (yet?)  legalized small amounts of recreational marijuana. The rest of the country is a patchwork, but the trend toward legalization is clearly growing.

For example, 22 states, including Ohio, have legalized medical marijuana. These include Montana, North Dakota, Minnesota, Illinois, Michigan, Ohio, West Virginia, Pennsylvania, Maryland, Delaware, New Jersey, New York, Connecticut, Rhode Island, Florida, Louisiana, Arkansas, Oklahoma, New Mexico, Arizona, and Hawaii.

Nine other states have legalized recreational marijuana along with medical marijuana. These are Alaska, Washington, Oregon, California, Nevada, Colorado, Maine, Vermont, and Massachusetts, PLUS Washington D.C.

However, marijuana is still a Schedule I substance under the Federal Controlled Substance Act. Some federal regulations that affect marijuana use are still in effect regardless of the existence of state laws legalizing marijuana use.

For example, the Department of Transportation Drug and Alcohol Testing Regulation does NOT authorize medical marijuana, legal under a state law, as a valid medical explanation for a positive drug test result.

Federal contractors are required to maintain drug free workplaces and zero tolerance policies.

Aside from these policies, the federal Drug Enforcement Agency has NOT aggressively prosecuted marijuana use cases in states with legalized marijuana laws.

How do the state marijuana laws affect employers? The answer is – IT DEPENDS!

Some state laws expressly prohibit employers from discriminating on the basis of an employee’s use of legal medical marijuana as long as the employee complies with state law.

These states prohibit discrimination against medical marijuana users: Arizona, Connecticut, Georgia, Illinois, Maine, Minnesota, New York, Pennsylvania, and West Virginia.

In Nevada and New York, there is a duty to accommodate medical marijuana.

Some states allow employers to enforce drug free workplace policies for medical marijuana use:  Ohio, Florida, Montana, Nevada, Vermont, and Washington.

California and Colorado allow employers to enforce drug free workplace policies for recreational marijuana use.

Some state laws FAIL to address the employment relationship at all: Massachusetts, Michigan, New Hampshire, New Jersey, North Dakota, and Oregon.

For employers who have facilities across multiple states, the landscape of marijuana legality is constantly changing and can create big problems!

Things Clients Want to Know:

Wednesday, May 2, 2018

Q.:  Why would I hire you as an hourly workers’ compensation attorney when I can have my third party administrator’s attorney cover my hearing for a one time flat fee? 

A.:  Every employer has multiple choices for representation at hearings. The benefit to having a lawyer attend a hearing are: 1) a lawyer may argue the law and 2) a lawyer may directly question the claimant.

Before I address the concerns, I want to emphasize that there are equally talented lawyers that practice both hourly and for a flat rate.

The issue for hearing is a good indicator of who you should select to represent you. If it is a hotly contested hearing, with factual and medical disputes, you would certainly want an hourly attorney that you have hired to do an extensive investigation of the facts and prepare a defense on your behalf. You have unlimited access to an hourly attorney, while typically you would have little or no contact with a flat rate attorney until the day or the day before the hearing. These same flat rate attorneys will not likely represent you in any post administrative court proceeding.

It is extremely beneficial to have an attorney represent you throughout the administrative level through to court if that case continues. Their assessment and observations of the claimant at hearing, as well as detailed administrative work-up are a great predictor of the likelihood of success in later court proceedings.

Hearing issues such as Permanent Partial Hearings require little to no legal argument and certainly no cross examination would best be served by using a flat rate attorney.

The benefit of paying an hourly lawyer is that you are retaining a lawyer that not only is intimately knowledgeable about your business, but you are retaining that lawyer for the overall cost containment of the claim. An hourly lawyer can make recommendations as to what they foresee is the next step the claimant may take in a claim and predict what the overall exposure on the claim can be.

Flat rate lawyers take multiple hearings in one hour and will only represent you at that hearing. They typically will not make recommendations for future cost containment, or even what further documentation would be needed at future hearings.

The choice of what kind of representation is a business decision, that depends solely on the circumstances for your business and the specific facts of the claim at hand.

 

Not every workers’ compensation claim requires the help of an attorney. But if you need one, choose experience, reputation, and most importantly, someone who understands how you do business.

LL Patterson LLC is founded on the principle of providing clients with exceptional and results oriented service. The singular mission of LLP is to aggressively and exclusively protect Ohio Employers’ rights in workers’ compensation, OSHA, VSSR, and employment related issues. Whether you’re in the medical or healthcare industry, the construction field, education, the corporate world, or small business, the goal remains the same: to reach final closure of your workers’ compensation claim in as little time as possible while minimizing cost.

Lisa L. Patterson understands the complex intricacies of the Ohio workers’ comp system and has sixteen years experience working with this very specific and sensitive form of law. A seasoned Ohio employers’ advocate, she will work to ensure that all parties’ claims are fairly and efficiently executed to protect your interests and assets.