Local employers, employees given tips regarding state’s medical cannabis program in the workplace | Journal-news

MARTINSBURG — As state leadership continue to iron out details regarding West Virginia’s medical cannabis program, officials in the Eastern Panhandle said it is important the community remain educated and up to date on the finer details to ensure their rights are protected at home and in the workplace.

In a presentation to the Martinsburg- Berkeley Chamber of Commerce called “Peace, Love and Understanding Medical Cannabis and Hemp,” Tyler Mayhew and Kin Sayre, both with Bowles Rice Law Firm, offered background, tips and helpful hints to keep in mind for both area employers and employees.

“Having an understanding of medical cannabis, patients, employers and the workplace can be tricky because at this point the law in this area is still very new,” Mayhew said. “Ten years ago legalized cannabis was really an outlier recognized in a handful of states but today the majority of states allow some form of cannabis use. The law in this area isn’t as fully developed as others so what I see as being an issue as this is rolled out is educating employees and employers what their rights are …”

The Basics

According to the presentation, certified medical use means the “acquisition, possession, use, or transportation of medical cannabis by a patient, or the acquisition, possession, delivery, transportation, or administration of medical cannabis by a caregiver, for use as part of the treatment of the patient’s serious medical condition, as authorized in a patient certification issued under the Act, including enabling the patient to tolerate treatment for the serious medical condition.”

According to Sayre, the fifteen serious medical conditions that qualify a patient for medical cannabis use includes: cancer, HIV, ALS, Parkinson’s, MS, spinal injuries, epilepsy, neuropathy, Huntington’s disease, Crohn’s disease, PTSD, seizures, sickle cell anemia, severe chronic/intractable pain and terminal illness.

Sayre said a patient card or certification must come from a physician “practitioner” licensed by the state.

According to Sayre’s portion of the presentation, the West Virginia Medical Cannabis Act was signed into law on April 19, 2017 and faced multiple roadblocks in trying to get to July 1, 2019, the initial date chosen by the state to start issuing identification cards to allow patients to legally purchase, possess and use medical cannabis.

“However, the program has hit numerous snags along the way, resulting in significant delays in implementation. Consequently, medical cannabis sales still cannot take place in West Virginia,” Sayre said.

According to the presentation, the Department estimates increased expenditures related to Medical Cannabis to be $1,656,351 the first year and $1,139,868 ongoing with estimated revenues being $1,292,500 the first year and $8,167,500 ongoing.

Sayre said as of Feb. 18, 2020, the deadline for grower, processor, dispensary and laboratory permit applications to the Office of Medical Cannabis and as of Oct. 2 and Nov. 13 of this year, all grower and processor permit winners were announced.

Sayre added dispensary permit winners are expected to be announced by the end of the year.

The Office of Medical Cannabis expects to issue patient/caregiver cards issued and begin dispensary sales in late spring 2021, Sayre said.

Of those official growers two were selected in the Eastern Panhandle: Harvest Care Medical LLC in Kearneysville and Columbia Care WV LLC in Falling Waters.

Columbia Care WV, LLC was also awarded an official processor permit as well.

The law originally did not allow for integrated operations but Mayhew said changes were made to allow for those integrated operations, as is the case with Columbia Care WV, LLC.

For employers

Mayhew, an attorney, partner and chair of Human Resources with Bowles Rice, said as the state’s program continues rolling out and as patients start obtaining cards and have the opportunity to purchase their medicine, employers must be prepared to protect themselves as well as their staff.

“Our medical cannabis act is more restrictive than it is in other states in the terms of the medical conditions needed to obtain this medicine and its more restrictive of the forms of medicine the state allows people to receive,” Mayhew said. “There are some medical conditions within the list that folks will probably run into at some point, in particular the law does allow for folks who have PTSD to obtain a medical cannabis card and that is a medical condition that is both not obvious in terms of a person’s day to day demeanor and also more common in terms of the workforce than some of the other medical conditions that are perhaps terminal illnesses.”

Mayhew said with some of these more common illnesses listed as qualifiers he expects there to be a larger population of medical cannabis patients in the workforce as the program continues to roll out, meaning employers need to have an understanding of what they can and cannot do with those employees and their rights.

“It is important policy in place that addresses what the expectations are of your employees in terms of illegal drug use and drug testing but, within in that subset, how you will handle medical cannabis in your workplace,” Mayhew said. “Particularly jobs that may be safety sensitive… I think its very important for it to be clear that those types of jobs are not going to be the types of jobs that folks who are under the influence of medical cannabis will be able to do.”

In setting these expectations in the workplace, Mayhew said it will ensure the protections and rights of the employer are not violated as well as the patients, as he said the law has multiple protections built in for the latter.

“As an employer you cannot take adverse action against an employee solely on the basis of their status as a medical cannabis patient,” Mayhew said. “That does not mean you can’t discipline people violating policies on drug possession or use or violating limitations placed on medical cannabis patients. What it does mean is just because someone has a medical cannabis card that is not reason to hire or fire or object him or her to additional scrutiny. There has to be an objective and legitimate basis.”

According to Mayhew, the statue is written so there is no requirement to accommodate the use of medical cannabis in the workplace or to encourage an employer violates federal law, which says cannabis in all forms is illegal.

In addition, Mayhew said each of the medical conditions that would allow a person to obtain a medical cannabis card would be considered disabilities and employers need to have an understanding of how the medical cannabis law works in conjunction with West Virginia’s disability law because at both federal and state qualified individuals with a disability are to be given the same rights and opportunities as everyone else in the workplace.

Mayhew said to accomplish that goal there are times where employers would have to make reasonable accommodations to allow a qualified person using medical cannabis to perform the essential functions of their job.

For employees

According to Mayhew, employers and leaders in the area should not only thoroughly educate themselves on the ins and outs of the medical cannabis program in the Mountain State but potential employees as well, as there are limitations in place for patients as well.

“The law is very clear that a patient who is under the influence of medical cannabis cannot do certain things like operating a vehicle …” Mayhew said. “There are other things the law says you cannot do for example working at heights… in our state…you may not be qualified to work in your profession as a medical cannabis patient and these are limitations that are built into the law itself so, unrelated to an employer’s policy, there are things someone who becomes a patient in West Virginia needs to know.”

Mayhew said what residents and employers of the Eastern Panhandle in particular need to keep in mind is that because Maryland, Pennsylvania and Virginia are such a short drive away, people need to understand that the way West Virginia law is written is it only recognizes legal medical cannabis use by patients who have a West Virginia issued medical cannabis card.

“Just because you may be a legal medical cannabis user in Maryland, that fact alone does not mean you have protections in West Virginia under our law and that’s important thing for people to understand because folks are not familiar with the details of the law…” Mayhew said. “It is important for employees and employers who are recruiting to know their rights and protections as someone who lives here and works out of state or lives out of state and works in West Virginia. We have so much cross border commerce so it’s important for folks to understand.”

Overall, Mayhew emphasized the importance of educating the public on their rights as both employers and employees and encouraged residents of the Eastern Panhandle to keep up with the ongoing developments of the program as they arise.

For more information on the state’s medical cannabis program, visit dhhr.wv.org under the Office of Medical Cannabis tab.

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