November Elections, Marijuana, and Workplace Safety
When the smoke clears from the November elections, voters in nine states will have decided ballot measures on the legality of marijuana use for medical and/or recreational purposes. More employers will face questions around workplace safety, drug-free workplaces, and workers’ compensation insurance if additional states legalize marijuana.
Marijuana and the Workplace
Despite being classified as a schedule I drug under the federal Controlled Substances Act of 1970, 25 states and the District of Columbia currently allow comprehensive medical use of marijuana or its active ingredient, tetrahydrocannabinol (THC). Four states also allow for recreational use, while 18 others allow limited medical use — for example, in clinical trials or to treat specific conditions. Upcoming ballot measures would legalize comprehensive medical use of marijuana in Arkansas, Florida, Montana, and North Dakota and recreational use in Arizona, California, Maine, Massachusetts, and Nevada.
For employers, the implications of marijuana use fall primarily into three categories:
- Marijuana as a workplace hazard. THC can slow an individual’s reaction time and adversely affect concentration, potentially making users more prone to injure themselves or others. And drug use in the workplace remains a concern for employers: The percentage of American workers testing positive for illicit drug use in employer urine tests increased in 2013 and 2014, according to Quest Diagnostics.
- Marijuana and workers’ compensation claims. Employers in some states can deny workers’ compensation claims if marijuana is the sole or primary cause of an employee’s injury. But this can be difficult to prove, especially since marijuana can remain in a person’s system for months — meaning it is difficult to determine if someone was under its influence at the time of injury.
- Marijuana as a potential treatment for workplace injuries. In some workers’ compensation cases, doctors have recommended marijuana — which has proven therapeutic benefits, including pain relief — as a form of treatment for recovering employees. Courts have taken varying stances on whether employers and their insurers should be required to pay for this treatment.
What Employers Can Do
Marijuana will undoubtedly remain an issue for individuals, businesses, courts, and regulators for years to come. But even as it is decriminalized, state laws and court decisions have generally favored employers’ attempts to keep marijuana and other drugs out of the workplace, including through drug testing.
As the regulatory landscape evolves, you should continue to monitor legal developments related to marijuana’s role in workers’ compensation claims, with help from your insurance and risk advisors. Meanwhile, work with your human resources teams and labor and employment counsel regarding employee drug testing. And make sure you have clearly written policies that address medical and recreational marijuana use, and explain to employees the consequences of a positive test result.