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Opinion: Review policies after medical marijuana, other law changes

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Several new and rescinded state and federal actions will affect area businesses.

Employers in Missouri need to modify policies and practices based upon the passage of Missouri medical marijuana law.

On a federal level, the Affordable Care Act has been ruled unconstitutional, the Occupational Safety and Health Administration has begun using drones for inspections and investigations, and the Equal Employment Opportunity Commission canceled the Wellness Incentive Rules.

Here’s what that means to business.

Medical marijuana policies
Though Missouri’s Amendment 2 allows for the usage of medical marijuana for qualified patients with physician consent, the law does not change federal law stating marijuana is illegal under the Controlled Substances Act. Organizations may continue to administer drug-free workplace policies forbidding employees from working under the influence of marijuana and can still discipline and terminate associates in violation.

Prohibiting staff from using marijuana at work also is still legal. Drug testing job applicants remains allowed. In some cases, a company is required to do so under federal law, such as the Department of Transportation regulations. In fact, the Missouri law specifically states, “nothing in [the law] permits a person to operate, navigate or be in actual physical control of any dangerous device or motor vehicle, aircraft or motorboat while under the influence of marijuana.”

Missouri courts will determine whether medical marijuana is a reasonable accommodation.

To comply with the new law, corporations should take these five steps.

First, be sure your drug-free workplace policy forbids working under the influence of medical marijuana.

Second, adhere to your drug-free workplace policy and impose disciplinary policies as you would regardless of the illegal substance in the worker’s system. Third, create a policy banning smoking, ingesting or otherwise consuming marijuana at work in any form, such as vapor, edible, oil, etc. Fourth, train managers concerning behaviors indicating potential marijuana impairment, such as red eyes, sluggish deportment, dexterity issues, confusion and difficulty focusing. Ensure supervisors understand reasonable suspicion testing procedures, such as preparing documentation, sending or taking team members for testing or notifying the human resources department. Fifth, contact an employment attorney when a laborer makes a medical marijuana-related accommodation request.

Affordable Care Act
A federal judge in Texas ruled the ACA unconstitutional in December 2018 due to the elimination of the individual mandate through the Tax Cuts and Jobs Act. The decision is being appealed, and the ACA remains in effect during the appeals process. Therefore, enterprises should continue adhering to the ACA requirements, but stay tuned for more court actions.

OSHA and drones
OSHA is now utilizing drones for specific inspections and investigations. Currently, drones are gathering evidence during inspections in places considered unreachable or unsafe for compliance officers to enter or be nearby.

Drones also are being used for technical support in emergencies, for training and during compliance assistance events. A compliance officer must obtain permission from the business before a drone is employed on any inspection.

Wellness program incentives
The EEOC annulled the Wellness Incentive Rules established in 2016. Continued adherence to the rules is risky since a federal court decided the rules violate the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. The lowest risk is to exclude any incentives/penalties until additional direction is received from the EEOC.

Lynne Haggerman holds a Master of Science in industrial organizational psychology and is president/owner of Lynne Haggerman & Associates LLC, a Springfield firm specializing in management training, retained search, outplacement and human resource consulting. She can be reached at lynne@lynnehaggerman.com.

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