As NY, NJ, and CT have legalized recreational marijuana, our firm has formally launched its Cannabis Law Practice Group to help our clients navigate the rapidly evolving cannabis laws and regulations. Each state’s law creates protections for employees who legally use recreational marijuana and prohibits employers from taking adverse employment actions for legal cannabis use. Important takeaways for employers in each state are summarized below.  Additional considerations specific to employers in the healthcare field will be addressed in a future alert.

New York Marihuana Regulation and Taxation Act

  • Employers are permitted to enact substance-free workplace policies that prohibit the use of marijuana during work hours, on company property, and while using an employer’s equipment or other property.
  • Employers cannot discriminate against employees that legally use marijuana outside of work hours, off the employer’s premises, and without the use of the employer’s equipment or other property.
  • The law provides three exceptions where an employer’s action against an employee related to that employee’s marijuana use would not violate the law:
    • The employer was required to take action under state or federal statute, regulation, ordinance, or other state or federal government mandates;
    • The employee manifests “specific articulable symptoms” while working that decrease or lessen the employee’s performance or interfere with the employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal law; or
    • The employer’s actions would require such employer to commit any act that would cause the employer to be in violation of federal law or would result in the loss of a federal contract or funding.
  • Employees have a private right of action to sue their employers for alleged violations of the law.
  • An employer cannot reject an applicant solely on the basis of a positive drug test for marijuana.

New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act

  • Employers cannot refuse to hire, discharge, or discipline an individual for the sole reason that the individual uses marijuana outside of work hours, off the employer’s premises, and without the use of the employer’s equipment or other property.
  • Employers are permitted to have a drug-free workplace policy and prohibit the possession, transfer, display, transportation, sale and growth of marijuana in the workplace.
  • An employer cannot use a marijuana-related criminal history to make any employment decisions.
  • Employers are expressly permitted to drug test prospective or current employees for a pre-employment screening, upon reasonable suspicion that the employee used marijuana during work hours or while performing a work duty, as part of regular screening, for random testing of employees in safety-sensitive positions, and during the investigation of a work-related accident. However, the drug test must:
    • Be based on “scientifically reliable objective testing methods and procedures”, which are defined as testing of blood, urine, or saliva (the definition does not include hair follicle testing); and
    • Requires an employer to conduct a physical evaluation to determine whether the employee is impaired, and the physical evaluation must be conducted by an individual with the “necessary certification to opine on the employee’s state of impairment.”
  • Employees do not have an express private right of action against their employers for alleged violations of the law. Whether or how employees will be able to challenge an employer that violates the law’s prohibitions is an open issue.

Connecticut Act Concerning Responsible and Equitable Regulation of Adult-Use Cannabis – Effective July 1, 2022

  • Employers are permitted to prohibit marijuana possession, use, or other consumption at the workplace and to maintain a drug-free workplace.
  • Employers are permitted to take action against employees upon reasonable suspicion of an employee’s use of marijuana while performing work responsibilities or after determining an employee shows “specific, articulable symptoms” of drug impairment that decrease or lessen performance, which include, but are not limited to:
    • Symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, or irrational or unusual behavior;
    • Negligence or carelessness in operating equipment or machinery;
    • Disregard for the safety of the employee or others, or involvement in an accident that results in serious damage to equipment or property;
    • Disruption of a production or manufacturing process; or
    • Carelessness that results in an injury to the employee or others.
  • Employers can take adverse action based on positive marijuana drug test results after a pre-employment drug test or random drug test where the employer has a policy stating that such a result may result in adverse employment action.
  • Employees have an express private right of action to sue their employers for alleged violations of the law.
  • Certain employers are exempt from the laws prohibiting employers from taking adverse actions against employees for their marijuana use, including, but not limited to, healthcare or social services, construction, manufacturing, transportation, public safety, and educational employers.
  • As of July 1, 2021, the employment related provisions of the law exclude privileges, qualifications, credentialing, review, or discipline of a hospital’s or medical organization’s nonemployee, licensed healthcare professionals on the medical staff.

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To view Garfunkel Wild’s complimentary webinar, “Legalized Medical and Recreational Marijuana: Navigating the Ever-Shifting Landscape for Employers,” click here.

Should you have any questions regarding the above, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com

Click Here to download the Legal Alert.

 

On July 13, 2021, the Department of Health and Human Services (DHHS) and other Federal agencies published Interim Final Rules related to the No Surprises Act, the Federal consumer protection law that aims to close the gap between existing state and Federal laws that offer patient protections against surprise medical bills.  DHHS will finalize these rules after the comment period ends.  The finalized rules and the No Surprises Act go into effect on January 1, 2022.

While some states have addressed balance-billing concerns in their respective laws, these rules now affect self-insured plans, normally preempted by ERISA.  The Interim Final Rules apply to the following services: (i) emergency services; (ii) certain post-stabilization services; and (iii) non-emergency services provided by out-of-network providers at in-network facilities. The No Surprises Act and the Interim Final Rules impact the following groups:

  • group health plans and health insurance issuers offering individual or group coverage;
  • hospital emergency departments and independent freestanding emergency departments; and
  • health care providers and facilities.

Some key takeaways from the Interim Final Rules:

  • all providers and facilities must meet strict disclosure requirements;
  • out-of-network providers and facilities must satisfy specific notice and consent requirements prior to furnishing services;
  • plans pay only a calculated amount of a patient’s bill for out-of-network services;
  • providers and facilities cannot balance bill patients for the difference; and
  • patients cannot be balance billed for services received in an emergency room.

DHHS and other agencies will release additional guidance for the dispute resolution process and other related provisions. While these are interim rules, we do not anticipate any major changes in the final rules given how closely the Interim Final Rules track the No Surprises Act.

Providers that are out-of-network with any self-insured plans should take steps necessary to ensure compliance with these provisions starting on January 1, 2022, as the No Surprises Act and the Interim Final Rules authorize DHHS to impose civil monetary penalties on facilities and providers for any violations.

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Should you have any questions regarding the above, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.

Click Here to download the Legal Alert.

 

Ambulatory Surgery Center Association 2021 Virtual Conference

May 3, 2021

Speaker: Kimberly Kempton-Serra

 

Garfunkel Wild Partner, Kimberly Kempton-Serra, will present at the Ambulatory Surgery Center Association 2021 Virtual Conference on May 3, 2021.

Ms. Kempton-Serra will be discussing setting up a compliant patient transportation service.  This is an overview of the legal issues surrounding free transportation for ASC patients as well as the new transportation safe harbor.

For more information, click here.

 

New York City Bar Webcast – Telehealth 2021 – Rapid Legal Changes and the Implications Resulting from the COVID-19 Pandemic

May 4, 2021

Speaker: Stacey Gulick 

 

Garfunkel Wild Partner, Stacey Gulick, will present at the New York City Bar Webcast – Telehealth 2021 – Rapid Legal Changes and the Implications Resulting from the COVID-19 Pandemic on May 4, 2021.

Ms. Gulick will be discussing how COVID thrust Telehealth forward as the standard of care.

For more information, click here.

 

New York health care providers with significant Medicaid populations, such as federally-qualified health centers and hospitals, have been given a major reprieve from the imposition of the Medicaid pharmacy benefit transition from managed care (MMC) back to fee-for-service (FFS), which was scheduled to take effect on May 1, 2021.   On Tuesday, April 6th, New York’s Governor and state legislative leaders announced a two-year delay of the transition in the state budget negotiations.  The start date is now set at April 1, 2023, providing opponents of the transition with an opportunity to challenge the transition or find alternative means of cost-savings.

The delay will be of particular import to those who participate in the 340B Drug Pricing Program (the “340B Program”). In New York, 340B Program claims paid under FFS Medicaid are reimbursed at actual acquisition cost, whereas 340B Program claims paid under MMC are based on the pharmacy’s contract with the MMC plan.  The transition back to FFS was expected to significantly reduce the savings these providers realize through the 340B Program which would potentially impact the ability of these providers to continue providing necessary programs and services to their communities.

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Should you have any questions regarding the above, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.

Click Here to download the Legal Alert.