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Medical Marijuana and Workers’ Compensation

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As lawmakers around the nation more widely accept the use of medical marijuana (and recreational in some states), workers’ compensation systems face a new predicament. Marijuana legalization is a complex legal issue with many implications for the workplace. Employee drug testing and drug-free work policies may have to undergo a change, as well as workers’ compensation procedures. However, businesses suffer a lack of local government guidance, as state legislation and federal law are currently at odds.

How Medical Marijuana Can Affect a Workers’ Compensation Claim

Unlike alcohol, which leaves the bloodstream in a matter of hours, marijuana lingers in a person’s system for up to 30 days. An employer can ascertain that there was marijuana in an employee’s system, but it cannot be said for sure if the employee was high at the time of a reported incident. There are no tests available to pinpoint the exact time marijuana entered the system. It is also much more difficult to prove impairment due to marijuana than due to alcohol consumption. Thus, even if an employer confirms marijuana use, it is unlikely that drug use can be attributed to the cause of the accident.

On the other hand, an employee who tests positive for marijuana may be breaking workplace drug-free rules. Although California legalized medical marijuana in 2015, it is up to the employer to maintain a marijuana-free workplace or not. If the employer does have zero-tolerance drug rules, it could mean the dismissal of the employee’s workers’ compensation case. However, this presents an issue within itself—can employers ban a legalized drug from the workplace? As of now, employers are left on their own to adapt to changing state rules and decide whether to update anti-drug policies.

For example, the Colorado courts recently ruled that an employee violated his company’s zero-tolerance drug policy when he used prescription medical marijuana on the job. The employee is a quadriplegic who uses medical marijuana as part of his prescribed health care treatment plan. Despite this fact, the courts still ruled in the employer’s favor due to workplace drug policies.

Who Pays for an Injured Employee’s Medical Marijuana?

The National Counsel for Compensation Insurance recently received requests to cover costs of medical marijuana in workers’ compensation claims. When states began legalizing medical marijuana, widespread professional opinion was that workers’ compensation would not pay for this substance. Marijuana is still an illegal substance under multiple acts, including the Drug-Free Workplace Act of 1988. However, various boards are approving compensation for medical marijuana in workers’ compensation systems.

The ongoing confusion as to whom the law requires to pay for medical marijuana is in large part due to local governments having no precedence for policy decisions. As tension builds regarding this debate, the results have been disparate decisions in different states. Arizona, for example, updated its Medical Marijuana Act to add self-insured employers and workers’ compensation insurers as entities that do not have to pay for medical marijuana. New Mexico, on the other hand, saw medical marijuana as an equivalent to other forms of “reasonable and necessary” medical care and ruled that its workers’ compensation system must pay for the substance.

Twenty-five states and counting have legalized marijuana in some form. As states continue to issue conflicting rulings on how medical marijuana affects workers’ compensation, employers and insurers face a challenge to navigate various workers’ compensation boards with differing guidance and advice. In the future, when it comes to medical marijuana, employers and employees can likely expect a different type of workers’ compensation system across the nation.