With the upcoming implementation of medical marijuana in Ohio, you and your commercial clients may be wondering what impact, if any, this change will have on the Ohio Bureau of Workers’ Compensation (BWC) and its programs? BWC recently put together a fact sheet with information to help you understand the impact that this change will have on Ohio workers’ comp.
What does Ohio's medical marijuana law say?
In 2016, the Ohio General Assembly set up the framework to legalize medical marijuana in Ohio, effective Sept. 8, 2018.
It was approved for certain medical conditions, including pain that is either chronic and severe or intractable, PTSD, and traumatic brain injuries.
At this time, the only legal forms of medical marijuana will be edibles, oils, patches, plant material and tinctures. Vaporization is permitted. It cannot be smoked or combusted. Home growth is prohibited.
The Ohio Department of Commerce is tasked with regulating the licensure of medical marijuana cultivators and processors, as well as the laboratories that test medical marijuana. The state of Ohio Board of Pharmacy will license retail dispensaries and register patients and their caregivers.
Additionally, the State Medical Board of Ohio will regulate physicians’ requirements and procedures for applying for and maintaining certificates to recommend medical marijuana and maintain the list of conditions for which medical marijuana can be recommended.
What is the impact on the new law on the Ohio BWC?
The impact of the new law on BWC and its programs is limited.
It does not adversely affect the Drug-free Safety Program, will not require BWC to pay for patient access to marijuana, and expressly states that an employee whose injury was the result of being intoxicated or under the influence of marijuana is not eligible for workers’ compensation.
Nothing in the law requires an employer to accommodate an employee’s use of medical marijuana.
The law does NOT prohibit an employer from refusing to hire, discharging, or taking an adverse employment action because of a person’s use of medical marijuana.
The law specifies that marijuana is covered under “rebuttable presumption.” In general, this means that an employee whose injury was the result of being intoxicated or under the influence of marijuana is not eligible for workers’ compensation. This is the case regardless of whether the marijuana use is recommended by a physician.
While the law does not specifically address reimbursement for medical marijuana recommended for injured workers, Ohio law already has rules and statutes in place that limit what medications are reimbursable by BWC.
Administrative code provides that drugs covered by BWC are limited to those that are approved by the United States Food and Drug Administration. Marijuana has not been approved by the FDA and remains a Schedule I illegal drug under federal law.
BWC-funded prescriptions must be dispensed by a registered pharmacist from an enrolled provider. Medical marijuana will be dispensed from retail marijuana dispensaries, not from enrolled pharmacies.
BWC only reimburses drugs that are on its pharmaceutical formulary, which is a complete list of medications approved for reimbursement by BWC. Drugs not on the list are not eligible for reimbursement, and under BWC’s current rules, it cannot be included in the formulary, nor is it otherwise eligible for reimbursement.
What can employers do?
If you have not done so already, the best way employers can protect their workers and themselves is to establish a drug-free workplace, or, if they already have one, to review and update it if necessary.
This is important because certain sections of the new law reference the use of medical marijuana in violation of an employer’s drug-free workplace policy, zero-tolerance policy or other formal program or policy regulating the use of medical marijuana.
For what this means to your specific workplace, consult your human resources or legal department.
View BWC fact sheet
The Ohio Bureau of Workers’ Compensation (BWC) launched its Other States Coverage Program in March 2016, and many agents breathed a sigh of relief.
This made me incredibly happy too, as this was a big problem for many Ohio employers, resulting in lots of headaches for agents.
While BWC generally provides coverage for employees working temporarily outside of Ohio, problems can arise when injured employees file their claims in a state that does not recognize BWC’s coverage.
This leads to complications, including delayed treatment for the injured employees and penalties for their employers from the state in which the claim was filed.
To make matters even more confusing, some states require Ohio employers to obtain workers' compensation coverage in their state (in addition to BWC's coverage) for any work performed by their employees in that state, regardless of how brief they’re there.
Ohio’s border states such as Michigan, Pennsylvania and Kentucky do not recognize Ohio BWC coverage.
West Virginia recognizes BWC coverage "for a period not exceeding 30 calendar days in any 365-day period."
Indiana will respect Ohio’s jurisdiction, and does not limit it to a certain amount of days. However, this provision is for employees who are Ohio residents and only temporarily in Indiana.
What a confusing mess.
But guess what?
You can be part of the solution for your commercial clients who face financial exposures while working outside Ohio.
While Ohio employers can access BWC’s Other States Coverage program on their own through BWC, many already are (or will likely) turn to agents for expert advice and help in managing out-of-state-work risks.
When this happens, you can find the best solution for your clients’ needs – whether through a private carrier, state-assigned risk pool or BWC’s Other States Coverage program.
And if you do choose BWC’s program, you can receive an Application Services Fee of $50 for each policy placed in BWC’s other states coverage program (both new and on renewal).
I reached out to Kendra DePaul, manager of BWC’s Other States Coverage program, who indicated the program continues to grow.
At the one-year mark, the program had $1,174,753 in written premium.
As of July 06, 2018, there are 416 active policies with a total premium volume of $4,272,197.
Additionally, $9,150 has been paid in fees to agents on 183 policies.
While I had her ear, I asked Kendra to share some of the most common questions that she receives from agents and employers.
Can I endorse the policy for additional insured?
BWC’s Other States Coverage offering does not offer an endorsement for additional insured.
Adding a named insured is only allowed on a workers’ compensation policy if there is common ownership between the entities.
A completed ERM-14 is required for any additional insured.
Can a waiver of subrogation be added?
An endorsement is available in most states to waive subrogation rights.
In some states there is a charge to add the waiver.
Can permanent out-of-state operations be covered through BWC’s Other States Coverage Program?
Yes. Coverage is available for both temporary and permanent locations as long as they meet the eligibility requirements (business is headquartered or primarily located in Ohio, they maintain active coverage with BWC, 2/3 of their payroll is in Ohio, etc.).
When filling out the ACORD 130, please explain the specific business situation in the Nature of Business/Description of Operations section.
Does the application have to be signed? Can we have the employer sign it later?
A signature is required on the ACORD 130 before we can complete a quote.
The signature on the application is what gives us permission to pull the employers Ohio’s BWC-specific information to use in the underwriting process.
Interested in learning more about BWC’s Other States Coverage Program?
Check out the Other States Coverage Fall 2017 Newsletter or visit OIA’s Other States Coverage resource page to access webinars, agent FAQs, a customizable letter to inform clients of their exposure, and more.
OIA’s resource page
Effective July 1, 2017, Ohio employers can request that a workers’ compensation claim resulting from a motor vehicle accident that is likely to be subrogated be paid from the Ohio Bureau of Workers’ Compensation’s (BWC) surplus fund account rather than be charged to the employer’s experience.
Prior to this new process, Ohio employers had no reprieve from higher workers’ compensation premiums and loss of group rating eligibility, despite an auto accident not being their fault.
OIA member support
This new process is the result of the passage of Ohio House Bill 207, which OIA members Jim Klingensmith, CIC of L. Calvin Jones & Co. in Canfield, Mike Heister, CIC of Heister Insurance in Cincinnati, and Tom Lucci, CPCU, ARM of National Risk Management Services Inc. in Chagrin Falls provided testimony in support of this issue in the House and Senate insurance committees.
Initially, the form BWC developed for employers to apply for this new process required multiple pieces of supporting documentation that would have been difficult to obtain, such as the at-fault party’s auto insurance declaration page.
This raised significant concerns because it would likely be impossible for an employer to obtain this information. Without it, an employer would not be able to benefit from the new process to have a motor vehicle accident claim that is not their fault be charged to BWC’s surplus fund.
With this in mind, OIA arranged a meeting with several members of BWC’s actuarial and legal teams – including BWC Chief Actuary Chris Carlson -- to express concerns.
As a result of the meeting, BWC revised the form. Now only two key pieces of supporting insurance documentation are required to be submitted by an employer with the application: An auto insurance ID card can be provided in lieu of a dec page.
Educate commercial clients
A win for Ohio’s employers, this new BWC process corrects an inequity that used to exist by punishing employers that were in a situation that may be no fault of their own.
We encourage you to educate your commercial clients about this new process so they can take advantage of it should they be involved in a motor vehicle accident that meets this criteria.
Questions? Contact OIA’s Government Affairs Manager Carolyn Mangas.