Reposted from the Labor & Employment Law Navigator Blog - Click Here to Subscribe
For Ohio employers who pay into the state fund for their workers’ compensation coverage, enrollment in the Bureau of Workers’ Compensation’s (BWC) Drug-Free Safety Program (DFSP) can provide significant savings by way of premium rebates, provided that all the requirements of the program are met. These requirements include developing a written DFSP policy, providing employee education, offering supervisor training and employee assistance, and conducting drug and alcohol testing. Regarding drug testing, the BWC requires participating employers to utilize, at a minimum, a 5-panel drug test protocol, which includes cocaine, meth/amphetamines, PCP, opiates, and marijuana.
Naturally, with the legalization of medical marijuana in Ohio, employers may be questioning whether they are still required to test for marijuana to maintain their rebates under the DFSP. Well, with respect to the DFSP, nothing has changed… so far, at least. In order to enjoy the rebates afforded by DFSP enrollment, employers must still include marijuana in their drug testing protocol, regardless of a prescription. Not only that, but the BWC still does not cover medical marijuana as a prescription medication regardless of whether the employee’s recommendation is related to allowed conditions in a workers’ compensation claim; the BWC only covers prescriptions that are filled by registered pharmacists, not recommendations supplied by dispensaries, and further only covers medications that have been approved by the U.S. Food and Drug Administration, which is not currently the case for medical marijuana. Finally, the statutory rebuttable presumption that intoxication was the cause of a work injury upon a positive drug test following said injury also still applies with respect to marijuana, again even despite an authorized medical marijuana recommendation.
As such, while some may feel pressure to change with the times, Ohio employers should practice caution in any efforts to accommodate the use of medical marijuana, as they risk losing their DSFP premium rebates if they stop testing for marijuana and may even be missing out on a viable defense to workers’ compensation claims when marijuana is involved, even if the injured worker has a valid recommendation. This, of course, may change along with any changes in the legal status of marijuana in both federal and state law, but until the BWC officially states otherwise, it remains business as usual in Ohio when it comes to marijuana and workers’ compensation claims.