Post written by Danny Ramsey, Line of Business Manager – Workers’ Compensation
The issue of medical marijuana and employment law is still evolving, making it difficult for employers to understand the legal implications and find affordable workers’ compensation insurance.
Here are some of the leading issues employers face regarding marijuana use and the workplace.
- Workplace safety. In the majority of instances, your business isn’t involved in law enforcement, and you certainly respect your employees’ privacy after the workday has ended. But marijuana use, even outside of work, can trigger workplace safety concerns. If a certain level of THC – the psychoactive chemical in marijuana – remains in an employee’s system during work time, it can negatively affect that employee’s focus and performance. Workers operating vehicles or heavy equipment, climbing ladders or using potentially dangerous tools can put themselves and others at risk. Employers that ignore the risk may not only have trouble finding affordable workers’ comp insurance, they could face lawsuits resulting from the injury or death of the impaired worker, co-workers or other parties.
- Variations in state laws. U.S. laws regarding marijuana use vary from state to state and can contradict federal law. While marijuana possession and use is illegal at the federal level, it’s not that simple in practice. Nineteen states have legalized marijuana for medical purposes and four states plus the District of Columbia have authorized recreational use. With additional states considering legislative changes in coming years, companies that operate in multiple states must be conscious of each state’s regulations regarding marijuana use.
- Employee privacy. In states that authorize marijuana use to treat certain medical conditions, ranging from end-stage cancer pain to stress to arthritis, employers may be prohibited from questioning or controlling that use under federal regulations. Employers must comply with the Americans with Disabilities Act and the Health Insurance Portability and Accountability Act to avoid breaching employee privacy.
While these issues can create challenges for employers, companies can take steps to navigate through this murky legal environment. Here are some ways your business can instill confidence in insurers and protect your ability to obtain workers’ compensation coverage.
- Know the laws as they apply to you. Federal law on marijuana use is simple and straightforward: Marijuana use is prohibited in all cases. If you’re hiring for a federal agency and your employee uses marijuana — on or off the job, for any reason — and tests positive for THC at restricted levels while working, you can take action. But for most other employers, the law is more ambiguous. Businesses can forbid on-duty marijuana use, but the issue gets more complicated. For instance, some states disallow automatic termination upon the first offense. Laws also vary regarding the amount of THC allowed in the employee’s system during a work shift after off-shift use. Because there are a multitude of laws and restrictions, it’s critical that you understand the specific laws and their implications in every state in which you employ a workforce.
- Enact a drug testing strategy. There are several means of testing for marijuana impairment. Work with a testing lab and a medical review officer to conduct tests and accurately interpret results.
- Write a comprehensive drug use policy – and explain it to employees. What drug use is allowable and what is prohibited by your organization? Your drug use policy should cover all drugs, including alcohol, tobacco, marijuana and others, as well as address the requirements and restrictions for employees. Under what conditions will you conduct testing? What are the consequences for a first offense? Put it in writing and make sure all employees understand your expectations. Share your first draft of this document with an insurance or loss control professional to obtain feedback and recommendations.
- Apply for state drug-free workplace certification. State certification instills confidence in your insurer that you have an effective workplace substance abuse prevention program in place. Contact your state insurance department for information on how to get certified.
By setting up and maintaining an effective drug prevention program, employers can minimize the workplace risks posed by medical marijuana impairment as well as prevent legal challenges as legislation continues to evolve. Has your business enacted a drug use policy and prevention program? If so, please share your experience in the Comments box below.
For more information about setting up an effective program, contact your local independent insurance agent. For a list of independent agents in your area, click here.