Medical Marijuana Is Coming, but Will Patients Be Able To Access It?

(Summer 2018) On September 8, 2018, Ohio House Bill 523 – allowing for the use of medical marijuana – will go into effect.  But just because the law passed, doesn’t mean that employees will have carte blanch to use medical marijuana.

Every Ohio employer needs to decide what will be their stance on having employees who use medical marijuana.  Ohio employers have broad latitude in this issue.  They can choose to maintain a zero-tolerance policy about marijuana or they can accommodate an employee who has one of the 21 qualifying conditions, has received a recommendation from a physician for medical marijuana, and has registered with the state.

But before employees can even attempt to get access to medical marijuana there is a lot that still needs to be done to operationalize Ohio’s commercial enterprise of medical marijuana.  And because of all the moving pieces in play with this process, there are a number of barriers that will likely prevent an employee from legally gaining access to Ohio’s medical marijuana on the September 8 date.

Five current barriers to access

1. Number of doctors who will be certified
   One needs a recommendation from a certified physician to purchase medical marijuana.  However, there are going to be a lot of doctors who won’t go through the hoops to be certified to make recommendations.  Recently, A.J. Groeber, executive director of the Ohio State Medical Board shared that doctors who are part of a large healthcare system may not be permitted by that system to get a certificate. So, it’s not going to be every doctor who wants to participate.According to Groeber, the Board is anticipating 200-300 Ohio physicians will become certified to recommend.  As of June 2018, there are 53 physicians approved across the state.  In a state with 88 counties, that’s not even one per county.  However, the medical board says it will review physicians’ applications monthly.  Physicians applying for certificates cannot have financial interests in medical marijuana companies, must have an active license to practice medicine in Ohio, be registered with the state’s tool that tracks the dispensing of prescription drugs and take two hours’ worth of classes on diagnosing and treating the 21 approved conditions with medical marijuana.

2. Cost
   Groeber also pointed out that the costs involved in getting a recommendation and legally acquiring medical marijuana may deter some employees from participating.  He projects that an employee will have to spend $200-500 for a physician’s appointment since a bona fide patient/physician relationship, e.g., face-to-face examinations, is required.  There will also be a $50 fee for registration to get a medical marijuana card.  Purchasing marijuana will likely cost $300-400 an ounce (approximate joints per ounce equals 20-25 costing $15-20 per joint) or $50 for a one-day supply.

3. Dispensary Location
   Access to a dispensary, the legal entity licensed by the state to sell marijuana, may be inconvenient since not every county will have one.  Therefore, employees in counties that don’t have a dispensary will have to drive to another county to get medical marijuana.  This will probably result in needing money to purchase a 90-day supply of the drug instead of just a one-day supply which again drives up the out-of-pocket costs for the employee (insurance will not pay for medical marijuana).To date, of the 60 dispensary licenses permitted under HB 523, only 56 provisional licenses have been awarded.  The figure is less than 60 because
   1. Applications were not submitted for each of the 31 districts designated by the state.
   2. Not every district in which applications were submitted had viable applicants.

The Board does have the authority to increase the number of licenses on a biennial basis after the program is operational.

4. Logistics

   The timeline for the whole process is another factor to consider at this juncture.  Three separate state agencies – the departments of pharmacy and commerce and the Ohio Medical Board — are in charge of licensing and setting standards for the new program with a deadline of September 8, 2018.  However, while it is anticipated that the framework will be in place, the logistical and operational fulfillment factors may be a hindrance.

   • Growers and Processors
     • The first step in the process, are the growers. There have been lots of challenges for those applying for the state’s authorization to grow marijuana from weather impacting construction schedules to the Ohio Department of Commerce dealing with two lawsuits about the way it scored applications.  Then the 25 growers who have received provisional licenses need to be inspected by the state to obtain certificates of operations before they can begin the over 90-day grow period required for mature marijuana.
     • Additionally, from the 104 applications for processors to process marijuana into edibles and other permissible forms, the state needs to award up to 40 provisional licenses before September 8, 2018.
   • Testing facilities
     • Lastly, licenses for the labs that will test medical marijuana need to be awarded. The Ohio Department of Commerce accepted public university testing lab applications from September 11, 2017, through September 21, 2017, and privately-held testing lab applications from November 27, 2017, through December 8, 2017. In total, the Department received nine applications. The Department will continue its review of these applications and make an award once these reviews are completed. There is no limit to the number of testing lab licenses that may be awarded by the Department.

5. Employers who say “no”

   Even when the all the moving parts of the system are operational, employers in Ohio hold that last card.  With the broad latitude employers have, they can refuse or choose varying degrees of accommodation.  There is much to consider.

   For example, we can’t assume that if an employee tests positive for marijuana but has a recommendation for use, they are using dosages recommended by their physician.  They could buy their marijuana illegally – on the street – which could result in having a higher dosage in their system.  If they use the defense that they have a recommendation, no one is the wiser.  Further, even with a physician’s recommendation and medical marijuana accessed through a legal dispensary, having the substance in their system could have workplace ramifications.

   Although employers will likely prohibit medical marijuana use while on premises, an employee’s use may cause him or her to test positive on a workplace drug test.   And with or without a recommendation from a physician, the fact that marijuana compromises clear-thinking and response times, among other impacts, remains an issue.

   Are there certain positions for which employers would not want to accommodate (e.g. safety-sensitive roles)?  How will managerial decisions impact the workforce moral?  Or the company’s public image?  How will the operational aspects of the business’s drug-free workplace program need to change?

So, employers, use this time to get ready

There are a lot of moving pieces in the process to operationalize Ohio’s commercial enterprise of medical marijuana.  Even given the state’s confidence that administrative elements will be in place by the deadline, there is little likelihood that there will be any product to sell patients since it takes time to grow, process and bring medical marijuana to market under the rules.

But no matter the timeline of the state’s administrative duties or those of the providers, the employer has decisions to make. Each employer must determine and operationalize the breadth and depth of accommodation and risk they are willing to support, if any.  This will take some careful thought and discussions.  NOW is when employers need to decide what their stand will be and establish their corporate policies and practices.

Check out Working Partners® Yes… No … Maybe: Medical Marijuana & Your DFWP Program webinar to help you with these determinations.

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