The Marijuana Conversation: Questions Employees Are Asking

Over the next serval months, we will be diving into the National Council on Compensation Insurance (NCCI) Marijuana Conversation series aimed at exploring the issues surrounding marijuana’s impact on workers compensation stakeholders. “The Marijuana Conversation: Questions Employees Are Asking” is the third installment. 

As discussed in NCCI’s previous Marijuana Conversations, medical marijuana is currently legal in 29 states, as well as Washington, DC. It’s also legal for recreational use in eight states and Washington, DC. However, marijuana is still illegal at the federal level and is classified as a Schedule I drug under the federal Controlled Substances Act.

Like insurers and employers, employees have questions about how this impacts the workplace and potential treatment for workplace injuries.

Below are three key questions employees are asking as marijuana becomes legal across the nation.

Can I use medical marijuana to treat a workplace injury?

As medical marijuana laws continue to take effect across the states and medical marijuana use becomes more prevalent, employees want to know whether medical marijuana can be used to treat workplace injuries. And if so, will their employers or workers compensation insurers pay for it?

In states where marijuana is legal for medical use, it is generally used to treat conditions such as severe or chronic pain, muscle spasms, nausea, post-traumatic stress disorder, and seizures; and symptoms related to cancer, glaucoma, and HIV/AIDS. In the workers compensation context, injured workers may look to medical marijuana to treat many of these same conditions, particularly severe and chronic pain.

With opioid addiction and overdose at epidemic levels, and the current Administration’s recent declaration that the opioid crisis is a “national emergency,” there is increased discussion about whether medical marijuana is a safer, less addictive alternative to opioids for pain management.

Research is also exploring these issues and adding to the discussion. For example, a recent study by the US Department of Veterans Affairs that reviewed 27 previous research studies about marijuana’s effectiveness for treating chronic pain was published in the Annals of Internal Medicine.

Research to date has been limited and allowed only under strict controls because marijuana is still illegal at the federal level. Therefore, a clear consensus on whether medical marijuana is a viable pain relief alternative has not been reached. Additional research and studies in the coming years, such as a university-sponsored study in Colorado that is being conducted under federal guidelines, are expected to provide more information.

If medical marijuana is determined to be a viable treatment for workplace injuries, then employees want to know whether their employers or workers compensation insurers will pay for the treatment. As discussed in NCCI’s first Marijuana Conversation—“Questions Workers Compensation Insurers Are Asking”—to date, at least five states have found that medical marijuana is a permissible workers compensation treatment that requires insurer reimbursement. Generally, those states considered whether medical marijuana was a reasonable and necessary medical treatment for workplace injuries. On the other hand, some states, such as Florida, have laws specifically stating that medical marijuana is not reimbursable for workers compensation. Will states and state courts continue to find that medical marijuana is a permissible workers compensation treatment? Employees will no doubt remain keenly interested.

However, one concern is that if medical marijuana treatment becomes commonplace for work injuries, it could lead to other issues such as abuse. If so, would workers compensation cover the treatment for medical marijuana if its use or abuse negatively impacts job performance? Would accommodations be required? Certain medical marijuana formulations with low or no tetrahydrocannabinol (THC)—the chemical component that causes a “high”—are being utilized in some states, which could potentially minimize the negative side effects from marijuana use while still providing relief for certain medical conditions. It remains to be seen whether utilization of this low-THC formulation could define marijuana as an alternative to other drugs, such as opioids.

If marijuana is legal in my state and I am a marijuana user, how can it affect my job?

The growing legalization of recreational and medical marijuana across the states is leading to a new set of questions. Among them, employees who are using medical marijuana to treat a medical condition want to know whether they can use it in the workplace. They also want to know: Are there any repercussions at work if they legally use marijuana (medical or recreational) outside of work hours?

As discussed in NCCI’s previous Marijuana Conversation—“Questions Employers Are Asking”—the relationship between medical marijuana use and drug-free workplace policies is increasingly at the forefront of issues that states and state courts are reviewing.

To date, no state has explicitly placed restrictions on employers’ enforcement of their drug-free workplace policies for medical marijuana use. However, nine states have antidiscrimination or reasonable accommodation provisions as part of their medical marijuana laws, which may impact how employers enforce such policies.

An example of the potential impacts of these provisions comes from a federal district court decision in Connecticut. In this case, the employer rescinded a job offer based on the applicant’s positive drug test for marijuana during the preemployment drug screening. The court found that the applicant’s discrimination lawsuit against the employer could proceed under Connecticut’s medical marijuana law. Even though the law contains antidiscrimination provisions, it also contains provisions allowing employers to prohibit the use of intoxicating substances or to discipline an employee for being under the influence of drugs during work hours.

As state legislatures continue to enact and fine-tune medical marijuana laws, it’s not yet known if these antidiscrimination or reasonable accommodation provisions will become more commonplace and how they may impact employee use of medical marijuana—outside or in the workplace.

How is “impairment” determined for marijuana?

As medical marijuana becomes more commonly recommended by doctors, there are questions about whether employees who use it could be considered under the influence of drugs.

Employees want to know: If they are injured on the job and found to have been under the influence of marijuana, do they still get workers compensation? Since the employee was injured on the job, does it matter whether the marijuana was used for medical or recreational purposes if both are legal in a state?

Nearly every state has workers compensation provisions that restrict benefits in some form when a worker’s injury is attributed to intoxication or drug use. Most of those states provide for the complete denial of all benefits, while a few states allow for benefit reductions.

While states and state courts may provide guidance on intoxication or impairment for workers compensation purposes, many employees may still question how “impairment” from marijuana use can be determined. The presence of cannabis can remain in a person’s system for weeks, so it’s possible that a worker could test positive for marijuana but not be impaired at the time of the accident.

Impairment studies have generally focused on THC’s effects on a person’s system and on their driving skills. Studies have found that THC can negatively impact psychomotor skills, resulting in slower reaction times and decreased attention. However, these studies do not necessarily correlate the use of medical marijuana and driving impairment.

For now, it appears that testing for the presence of THC is the only way to determine possible impairment from marijuana use. However, there are efforts under way to develop more accurate tests. These tests may be similar to breathalyzers and other tests currently available for blood alcohol levels, which would eliminate the “false positives” that result from the mere presence of THC and would better define “impairment.” Unfortunately, the development and application of those tests could be years away. So, questions remain about how to determine whether an injured worker was under the influence of marijuana at the time of a workplace injury.

Conclusion

The current trend in the states is to legalize marijuana for medical purposes, and the momentum to legalize it for recreational purposes appears to be increasing. This leaves employees, who may be legally using marijuana under their state law, wondering about its use in and outside of the workplace and the potential impact on their jobs and workers compensation benefits. It remains to be seen how states will ultimately address these issues, and whether the federal government will intervene and provide guidance.

Stay tuned for our next edition of The Marijuana Conversation, which will focus on questions regulators and legislators are asking.

Click Here to review the previous installment: “The Marijuana Conversation: Questions Employers Are Asking”

Dan Zeiler

dan@zeiler.com

‚Äč708.597.5900 x134 

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