Medical Marijuana and Workers’ Compensation

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BY:
Ana Sims

Workers' Compensation Underwriting Director

October 21, 2020

When it comes to maintaining a drug- and alcohol-free workplace, most employers have a strict zero-tolerance policy that requires employees to regularly submit to alcohol and drug tests. However, given that recreational and medical marijuana (MMJ) is legal in many states and tetrahydrocannabinol can remain in the user’s system anywhere between one and seven days, can an employee who has a workplace injury and tests positive for marijuana be denied Workers’ Compensation benefits?

The fact is, because marijuana remains illegal at the federal level, MMJ patients are not covered by the Americans with Disabilities Act, making this a state-by-state issue. Today, laws regarding post-accident marijuana testing remain a contentious issue in the Workers’ Compensation arena, and employers will most likely continue to find inconsistencies between state and federal regulations regarding medical cannabis products and Workers’ Compensation.

Currently, all marijuana use remains illegal under federal law, with 33 states permitting MMJ use, and 11 of those states and Washington, D.C., also allowing recreational use. In some states, employers are generally prohibited from discriminating against workers for their off-duty use of lawful products. However, other state statutes specifically provide workplace protections for cannabis use (particularly for registered MMJ patients) and still other states make it clear that employers do not have to accommodate any marijuana use — even off duty.

Employers are permitted to maintain company policies against marijuana-related impairment of employees, and therefore may attempt to deny a Workers’ Compensation injury claim by asserting the employee was high at the time of the accident. This means that the employee may not be able to collect lost wages while off work recovering. In addition, the insurance carrier could argue that the worker was under the influence of marijuana at the time of the injury and, therefore, is responsible for his/her own medical bills.

While the Americans with Disabilities Act protects most employees with serious medical conditions from being discriminated against by their employer, it does not protect them from the federal government ban on marijuana use. Even with an MMJ card, using the drug at work is not permissible and employers are within their right not only to ban employees from using MMJ while on the job, but also to terminate those who come to work under the influence.

This could also result in the employer’s insurance carrier withholding Workers’ Compensation benefits to an employee who is injured on the job and tests positive for marijuana. However, because THC can remain in the bloodstream for such a long period of time, an injured worker may test positive – even if it has been several weeks since the drug was used. This could have a significant consequence on how much an employee may receive in Workers’ Compensation benefits.

Laws regarding MMJ in the workplace are continually changing. It’s important that you, as a broker, review policy guidelines around MMJ issued by organizations such as the Occupational Safety and Health Administration and the American College of Occupational and Environmental Medicine, as well as the Official Disability Guidelines, with your employer clients. In addition, continually monitor state and federal legalization efforts and case verdicts to stay informed on any changes or updates in the law.

Staying informed about Workers’ Compensation issues and trends can help insurers, employers and other stakeholders better manage emerging risks.

To learn how Worldwide Facilities can help, please contact Ana Sims, Workers’ Compensation Underwriting Director at RIC, a division of Worldwide Facilities, at asims@wwfi.com or (707) 535-2510.

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