High Stakes in Workers’ Compensation
July 28, 2023How the legalization of marijuana is affecting the Workers’ Compensation industry
Over the last few decades, the topic of marijuana legalization has been a tough one to avoid. It started in 1996 when California became the first state to legalize medical cannabis, with many states following, and now with some states even legalizing marijuana for adults’ non-medical use. The movement in favor of legalizing medical cannabis usage only continues to gain momentum, but its potential impact on the workplace have left many legislators, insurers, and employers feeling dazed and confused.
As of 2023, 38 US states, three territories, and the District of Columbia have legalized the medical use of cannabis products. There are also two US territories and 24 states including the District of Columbia that allow adult non-medical use of cannabis. Additionally, there are approved measures in 9 states allowing the use of “low THC, high cannabidiol (CBD)” products for medical reasons in limited situations. For additional details on the status of legalization of marijuana in the U.S., click here.
While some states have legalized its use, it remains illegal at the federal level. However, the states are able to circumvent this because of recent laws that prohibit the federal government’s interference with individual states’ medical cannabis laws, the legalization of low-THC hemp and hemp products, and cannabis research for medical purposes. The evolution of marijuana’s legalization is ongoing, but without federal regulation, there are many gaps in the knowledge guiding employers’ workplace policies surrounding its usage.
As the laws adapt, employers must adapt, too. Important considerations for employers when revising company policies regarding marijuana usage include employer liability, employee safety, and laws that prohibit unfair discrimination. On one hand, federal laws protect employers who choose to completely prohibit employees from partaking in recreational marijuana, whether legal or illegal in their state. However, this could be considered discriminatory if an employee is using marijuana for medical reasons with a proper prescription, and their use does not pose a potential safety concern for other employees. It is best to consult with a lawyer when implementing specific policies in the workplace to ensure the policies are not discriminatory. Keep in mind that many employers consider their employees “at will” and reserve the right to terminate for any reason, so users beware.
There are several steps that employers and insureds can take to ensure that company policies are up-to-date with current research and regulations regarding employee marijuana usage. First, it is recommended to revise any existing company guidelines surrounding substance use to include terminology such as, “subject to change,” or “individual circumstances permitted upon review.” Having a lawyer review these policies before implementation is always best practice. Next, understanding the differences between impairment testing versus drug testing, and when to use each, will help determine the best response to incidents, accidents, and injuries in the workplace. Drug testing can measure the presence of drugs or their metabolites in a person’s body at the time of an incident. However, because some drugs, including marijuana, can remain in a person’s system from anywhere from days to weeks, an employee can test positive for drugs without showing signs of impairment. Therefore, impairment testing can assess a person’s current state of intoxication, and establish whether the employee is actually impaired at the time of the incident. See more details about drug testing versus impairment testing here.
Another factor for employers to consider is whether workers’ compensation benefits will cover the cost of medical marijuana, should it be prescribed to alleviate pain from an injury. The pain management offered by the use of medical marijuana may allow employees to return to work sooner, but the risks associated with an employee potentially being impaired while on the clock could create safety and liability concerns. However, it is important to note that many studies have shown that medical marijuana is a much lower-risk solution for pain mitigation than opioids, and is less likely to result in addiction which could actually prolong the return-to-work process. Further research, including more comprehensive and long-term studies, are still needed to better understand the relationship between medical marijuana use and workplace safety.
While research is still ongoing and laws are changing, employers must take a proactive approach to mitigating workers’ compensation claims that involve the use of legalized marijuana. Reviewing employees’ backgrounds for any history of drug or drug-related charges, canvassing medical treatment facilities and rehabilitation programs, and surveilling claimants to document any evidence of substance use before entering the workplace may be helpful resources that a private investigation agency can provide. Of course, employers should do all they can to prepare for these claims before they happen, and to obtain impairment testing at the time of the incident, but a thorough investigation can act as a safeguard to ensure all bases are covered in the event of any legal challenges.
The topic of marijuana in the workplace is certainly a multi-faceted subject with many points for employers and insurers to review and consider. It is best to stay on top of incoming research and continue to adapt and re-review policies frequently for the best possible outcomes. The CDC and The National Institute for Occupational Safety and Health (NIOSH) are trusted organizations to follow regarding workplace safety and the use of marijuana as it continues to evolve. But know that in the ever-changing world of insurance and workers’ compensation, there are always trusted private investigators staying educated and adapting to the claims world in order to better assist in all of your claims’ investigations.
Sources:
State Medical Cannabis Laws (ncsl.org)
Cannabis and Work: Implications, Impairment, and the Need for Further Research | Blogs | CDC