August 5, 2016

OSHA’s New Reporting Rules – Part 2:  Employee Rights and Post-Accident Drug Testing 

On May 12, 2016, OSHA published its final rule on electronic reporting of workplace injuries and illnesses.  This rule contains two significant provisions.  This first provision requires that certain employers submit workplace accident reports electronically. This provision becomes effective January 1, 2017, and was the subject of a previous legal update. The new rules’ second significant provision requires that employers put in place workplace accident reporting policies that are reasonable and do not deter or retaliate against employees who report workplace accidents.  Although this provision was originally set to take effect on August 10, 2016, OSHA has announced that enforcement of this provision will begin November 1, 2016.  This delay in enforcement does not mean employers should sit idly by.  The new rule warrants immediate evaluation of post-accident drug testing policies to ensure compliance. 

Under its new rule, OSHA has taken the position that automatic, mandatory drug testing following any job-related or workplace accident discourages employees from promptly and accurately reporting such incidents.  In addition, OSHA believes that such testing may serve as retaliation against an employee who properly reports such an accident. As a result, OSHA has taken the position that automatic, mandatory post-accident drug testing may run afoul of its new rule.  Accordingly, OSHA has advised that post-accident drug testing should be performed only in situations where it appears that drug use was the direct cause of, or a contributing factor to, the accident.  As a result of OSHA’s new rule, employers now must consider when to require a post-accident drug test and are encouraged to consider revising their policies and procedures to ensure compliance with the new rule.

Additionally, OSHA has indicated there may be issues with drug-testing processes in general.  While reliable tests exist to measure alcohol-related impairment at the time of an accident, the same is not always true with drug-testing.  Unlike alcohol testing, which can accurately measure impairment at the time of the accident, drug tests generally tend to measure “past” drug use, in many cases disclosing evidence of drug use that occurred several weeks prior to the accident.  For example, a person may test positive for marijuana that was smoked or ingested up to a month  prior to the accident.  In addition, a positive drug test does not necessarily indicate impairment at the time of the accident.  OSHA has determined that drug testing that does not identify impairment at the time of the accident, but only drug use at some time in the past, may be a violation of OSHA’s new reporting rule.  As a result, employers who have established a narrowly-tailored drug testing policy should also ensure that they perform drug testing designed to detect impairment at the time of the accident.  This may require consultation with drug testing professionals to arrange for a specialized series of tests following a job-related accident.

After November 1, 2016, OSHA may cite employers for post-accident drug testing policies and/or procedures that are deemed too broad or retaliatory of employees who report work-place accidents.  Fines for OSHA citations can range from $7,000 per violation up to $70,000 for a willful violation of the rule.  Starting in November of this year, those penalties are set to increase to $12,471 per violation up to $124,709 for willful violations.

Note that OSHA cannot prevent employers from complying with other federal or state laws, and an employer mandating post-accident drug testing in accordance with such laws is not retaliating against its employee. As a result, employers who are testing employees after an accident in order to comply with a more specific federal or state law or regulation should continue to do so.  Examples of this would be testing mandated by workers’ compensation laws, or testing required by a Department of Transportation.  Barring such an exception, employers should reevaluate their drug testing policies and procedures to ensure compliance with OSHA’s new rule.

This e-mail is not intended as a substitute for professional legal advice and its receipt does not constitute an attorney-client relationship.  If you have any questions about this information, please contact your attorney at Martin, Browne, Hull & Harper, P.L.L. at 937-324-5541.

                                                                                                                                                                                                                        One Main Street, Suite 800  •  P.O. Box 1488  •  Springfield, Ohio 45501-1488  •  Tel 937.324.5541  •   Fax 937.325.5432

How will the legalization of medical marijuana in Ohio affect your business?

On June 8, 2016, Ohio Governor John Kasich signed House Bill 523 (HB523) into law, making Ohio the 25th state to adopt the legalization of medical marijuana. This law is set to become effective in September of 2016. This legislation will undoubtedly be the cause of much confusion and misunderstanding among both employers and employees in Ohio as they begin dealing with the effects of this law in the workplace.

Although the specific rules and regulations governing the manufacture and distribution of marijuana have not yet been established (many experts believe this process could take up to two years), the law provides a sufficient framework for Ohio employers to gain an initial understanding as to how this new legislation may impact their businesses. It should be anticipated that Ohioans will begin traveling to nearby states to obtain medical marijuana as soon as September of this year. Consequently, it would be prudent for employers to put in place policies and procedures for dealing with legalized marijuana prior to the effective date of this legislation.

Below is a brief summary from the Ohio State Bar Association regarding the passage of HB523. The article provides “5 things employers should know about Ohio’s medical marijuana law.” Please review this article and consider how best to incorporate its guidance into your workplace.

Should you have any questions regarding this new legislation, please feel free to contact us.

5 things employers should know about Ohio’s medical marijuana law
June 20, 2016
By Sarah J. Moore
Over the summer, Ohioans will begin grappling with implementation of House Bill 523, the new law that legalizes medical marijuana in Ohio effective Sept. 6, 2016. Given the rise of medical marijuana legalization across the nation and the lack of uniformity in state regulations, it’s reasonable to anticipate confusion and misperceptions about what Ohio’s new law allows and how it will operate. Moreover, in light of last year’s high-profile marijuana constitutional amendment and the possibility of related ballot initiatives later this year, we can expect that there will be uncertainty regarding legality of marijuana possession and use.
Although it will likely take Ohio up to two years to draft and implement regulations governing the manufacture and distribution of medical marijuana, we can expect that patients suffering from one of the 20 qualifying medical conditions will begin travelling to other states in 2016 to purchase medical marijuana for use in Ohio. Consequently, it is critically important for employers to identify how Ohio’s new medical marijuana law will impact workplaces in our state.
1. Drug-free workplaces and zero-tolerance drug policies remain alive and well
Nothing within Ohio’s new law interferes with an employer’s right to prohibit the use, possession or distribution of marijuana in the workplace. However, although drug-free workplace and zero-tolerance drug policies will remain as is, employers should still review and update these documents to specifically state that, despite Ohio’s new law, medical marijuana is prohibited under these policies. For those employers who may not have a drug-free workplace or zero-tolerance drug policy in place, it is essential that one is drafted before September. Otherwise, it is arguable that any employee could possess or use medical marijuana in the workplace. At a minimum, the updated policies should be distributed with written employee acknowledgements secured. Best practice recommends providing training for employees in understanding these policies and how potential medical marijuana workplace issues will be handled by the employer.
2. No obligation to accommodate an employee’s medical marijuana use
An employee or job applicant currently engaging in illegal use of drugs is not a qualified individual with a disability for purposes of the Americans with Disabilities Act (ADA). Because marijuana is listed on Schedule I of the Controlled Substances Act (CSA), it is an illegal drug. Although the U.S. Department of Justice’s enforcement policy makes possession of small amounts of marijuana authorized under state law a low priority, it remains an illegal drug under the CSA. Employers are not required to accommodate an employee’s medical marijuana use under the ADA. Similarly, there is no recognized obligation under the FMLA to provide leave related to medical marijuana use to treat serious or chronic illness. Ohio’s new law does not change analysis of the ADA or FMLA and clearly states that an employer is not required to provide a legal accommodation to an employee to use, possess or distribute medical marijuana.
3. It’s legal to fire employees for use, possession or distribution of medical marijuana
For now, employers retain the right to fire an employee because of his or her use, possession or distribution of medical marijuana. Ohio’s new law specifically states that it does not authorize employees to sue an employer for adverse employment action related to medical marijuana. The law also provides that employers are not required to curtail such adverse employment action due to an employee’s use, possession or distribution of medical marijuana. Because the ADA does not protect individuals currently using illegal drugs, an employee may still be fired for periodic use of marijuana (medicinal uses included) in the weeks and months before the discharge. As an aside, nothing within Ohio’s new law alters compliance requirements related to applicable U.S. Department of Transportation regulations.
4. Medical marijuana users are not entitled to unemployment benefits
Ohio’s medical marijuana law contains a provision stating that, for purposes of Ohio’s unemployment compensation law, an employer has “just cause” to fire an employee for his or her use of medical marijuana, provided the use violated the employer’s drug-free workplace or zero-tolerance drug policies. Key to this protection is the existence of clear drug-free or zero-tolerance drug policies and a demonstration that the employee had prior notice and had acknowledged them.
5. Workers’ compensation claim defenses are unchanged
Under existing Ohio law, intoxication (including marijuana) is a defense to a claim for workers’ compensation benefits. Ohio’s new medical marijuana law does not alter an employer’s right to challenge workers’ compensation claims where medical marijuana use results in injury and allows it to utilize a positive, post-accident drug screen for marijuana. In other words, if an employee is fired as a result of medical marijuana use, the discharge will be deemed “for just cause” and the employee will be ineligible for unemployment compensation. Similarly, an employee will not be eligible for workers’ compensation if his or her injury was a result of being under the influence of marijuana.

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Tel 937.324.5541 • Fax 937.325.5432 • www.martinbrowne.com