A Further Look at Marijuana and Workers’ Compensation

We received numerous responses and follow-up questions about our recent blog on marijuana use. In this piece, we respond to some of the questions we’ve received from clients by providing more information on the topic.

Although some states have legalized medical and recreational use of marijuana, employers may still enforce a drug-free workplace policy in most cases. An employee may still be disciplined for testing positive for marijuana during a routine drug test.  Employers should refine their testing approach to specifically document the amount of THC present (tetrahydrocannabinol, the psychoactive chemical compound in marijuana), as this will allow the employer to base a determination of an employee’s impairment on scientific evidence.

The mere presence of THC in an employee’s blood test may not, by itself, be indicative of an employee being under the influence of marijuana in the workplace. Note also that certain products derived from the cannabis plant, like CBD (for cannabidiol) oil, can leave trace amounts of THC in a user’s system even though they do not have psychoactive properties. The amount of THC that must be present to cause actionable impairment is a subject that continues to be refined.

As every employer is required to provide a safe workplace, it is important they proactively identify and manage this new and evolving exposure rather than passively turning a blind eye. Employers can improve safety results by reviewing and refining their current drug testing policies and employee handbooks to address the new reality. These efforts likely will also provide the employer with stronger protections under the law should claims arise.

Recent studies by the Insurance Institute for Highway Safety and the Highway Loss Data Institute have concluded that traffic collision frequency has increased in four states that legalized marijuana.  It is easy to conclude that if an employee is involved in a motor vehicle accident, and tests positive for marijuana, liability and exposure to additional damages may follow if the employer did not have an active drug testing program.

Regardless of the legal status of marijuana, we can readily compare it with alcohol.  While alcohol is legal in every state, a positive drug test at a level indicating impairment can lead to termination. 

Lastly, while there are some jurisdictions where a judge or arbitrator has ordered provision of marijuana for treatment of an injury covered by workers’ compensation, something the industry as a whole is very concerned about, it should be noted that most of these decisions have been appealed by the claim administrator to a higher court. It remains to be seen how rules regarding medical marijuana and workers’ compensation will be resolved.

Gunnin Insurance is available to answer the temporary staffing industry’s questions about how legal weed may affect its workers’ compensation and risk management programs. Contact us today to talk to one of our professionals about your firm’s concerns.

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Gunnin’s team is standing by to help businesses find new and better ways to tackle their risk management challenges. Contact us today to find out how we can make your firm’s workers’ compensation program do more.