W/BM
WORKFORCE/BUSINESS MATTERS
Questions Surround Legality of Marijuana Use
W
ith many states legalizing medical and recreational marijuana sales and usage, employers are interested to know how it will impact their workers’ compensation claims. Zenith Insurance Company’s in-house legal team weighed in to answer some of the most common questions.
Q: With some state and local legalization of marijuana use, what are some ways this will affect workers’ compensation for employees if they are injured on the job while under the influence of marijuana?
Q: Are workers’ compensation statutes governed by federal law, which still rules marijuana use as illegal? What does this mean to employers and employees? The federal law, the Controlled Substances Act, does come into play regarding marijuana in the workplace, but more so in the employment-law sense, rather than workers’ compensation. Employers should be sure to consult with their employment attorneys when facing marijuana questions since there could be discrimination or Americanswith-Disabilities-Act consequences to decisions made regarding marijuana in the workplace. If the federal government removes marijuana from Schedule 1 of the Controlled Substances Act, it may impact state workers’ compensation laws. For example, in Florida, a recent case held that a workers’ compensation carrier
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This is a state-specific question, depending on the statutes, regulations and case law in each jurisdiction. But, in general, we should look at the intoxication, not the intoxicant. Alcohol is legal but drunk driving isn’t. In Florida, some or many
take the position that a medical marijuana card allows a person to use marijuana as a medicine but does not allow them to be under the influence at work. So, an insurer can deny benefits if an employee who has a medical marijuana card tests positive for marijuana after an on-the-job accident. A constant confounding problem is that urine testing doesn’t test for the intoxicating substance, THC, it tests for the metabolite left over after the THC is metabolized. A positive urine test just shows that the person used marijuana at some time in the past. Most carriers today continue to focus on the issue of intoxication and safety on the job, not on whether marijuana is socially acceptable or legal. Some states don’t allow testing for marijuana in an employment context if marijuana is legal for adult recreational use. Currently, that’s not the case in Florida, though it could change because it’s a trend seen in other states as marijuana becomes legal.
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SUMMER 2022
FLORIDA RESTAUR ANT & LOD GING A S SO CIATION
