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Zenith The legality of marijuana use explained
Questions Surround Legality of Marijuana Use
With 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?
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.
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
doesn’t have to pay for a medical marijuana evaluation because marijuana is on Schedule 1 and, by definition, has no medicinal value. Thus, the court reasoned, marijuana could never be medically reasonable or necessary, therefore the evaluation is not necessary. If, however, marijuana comes off Schedule 1, an injured employee could or might argue that a carrier has to pay for the evaluation, medical marijuana card and delivery device. Note: currently, the Florida medical marijuana law says marijuana “is not reimbursable” under workers’ compensation, so insurance carriers would not have to pay for the cannabis, but might have to pay for the evaluation, vape pen or rolling papers.
Q: What other issues are employers seeing due to the increased use of marijuana?
The biggest problem Florida employers face relates to the labor shortage coupled with the increase in marijuana use. Some employers are having a very difficult time finding employees who test negative for marijuana on applicant testing (Florida Drug-Free Workplace requirements include mandatory applicant testing). Employers have asked about removing marijuana from their testing panel. Many insurers discourage that, as it creates limitations in determining compensability after a positive post-accident test.
As an alternative to not testing for marijuana, some carriers have taken the position that employers can hire applicants who test positive without affecting their Drug-Free-Workplace status. However, it’s good practice for employers to document that the applicant acknowledges that intoxication on the job site is not condoned, that there is no acquiescence to working while under the influence and that benefits can be denied if there is a positive post-accident test.
A related issue is that employers are reporting very long delays in receiving the results of applicant testing due to the amount of COVID-19 testing that labs are doing. Some employers have lost promising applicants to other employers while waiting on making a final hiring decision until the test results come back. Again, employers should consult with their human resource professionals and/or employment attorneys regarding these hiring issues.
The information contained in this article is not to be construed as legal advice and is not meant to be a substitute for legal advice. Zenith Insurance Company (Zenith) makes no representations or warranties, express or implied, guarantees or conditions of compliance with applicable laws or regulations and such compliance is ultimately the responsibility of the employer. The information presented is not applicable in all jurisdictions of the U.S. The jurisdiction you are in, changes in the law or regulations or the specific facts of an individual case may result in different interpretations of the law or process than those presented here.
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