How medical marijuana complicates workplace policies for employers

For employers and risk managers, legalized medical or recreational marijuana is no laughing matter. (Photo: Shutterstock) For some, it may seem shocking that we’re to the point of discussing the impact of marijuana use in the workplace. For others, it’s a no-brainer: a potential cure for some significant issues. Related: Workplace safety and weed at work Many are quick to joke about legalized pot, but for employers and risk managers, the notion of legalized medical or recreational marijuana is no laughing matter. Rapidly evolving Marijuana usage is a rapidly evolving issue. Public perception seems to be moving steadily toward support for legalization, for both recreational and medicinal use. In fact, a recent report found 93% of people believe marijuana should be legal with a doctor’s prescription. Related: Study finds support for marijuana legalization, but its future is still cloudy Support for its legalization is growing at the state level. It’s now legal in 28 states plus Washington, D.C., and new states are pushing to legalize it every year. However, marijuana remains classified as a Schedule 1 drug under the federal Controlled Substances Act (CSA) of 1970. Two petitions to strip marijuana of its Schedule 1 classification were denied in 2016. And the Trump administration — specifically Attorney General Jeff Sessions and Health and Human Services Secretary Tom Price — have expressed opposition to medical and recreational marijuana use. While it’s too early to tell exactly what form changes may take, it seems unlikely that there will be a universal understanding any time soon. Meanwhile at the state level, marijuana cases are being tried frequently, and new precedents are set all the time. For example, in Colorado where both medical and recreational marijuana are legal according to state law, the state Supreme Court ruled that employees can be fired for using medical marijuana off the clock, even if they aren’t impaired on the job. This discrepancy between state and federal laws means there is little guidance about what the statutes mean or an obvious direction for employers to take regarding workplace drug-use policies. Related: 5 developments impacting medical marijuana in workers’ compensation (Photo: Shutterstock) What employers need to know Who can use medical marijuana? The laws vary, but states with medical marijuana laws typically permit people with serious medical conditions — like cancer, Crohn’s disease, epilepsy and multiple sclerosis — to use marijuana or its active ingredient THC without penalty. Most patients need permission from a doctor and must buy marijuana from certified dispensaries. However, as the Colorado court decision indicates, employers are not required to allow the use of medical marijuana, even if it’s been obtained legally. This is where it gets complicated. How does this change affect employers? The conflict between federal laws and those of some states create uncertainty for employers. Thus far, courts have upheld an employer’s right to maintain a zero-tolerance position regarding illegal drug usage. Even if an employer is more liberal regarding either recreational or medicinal marijuana usage, they would likely have a policy against working while impaired. One of the challenges is that, unlike alcohol or some other drugs, it is very difficult to determine the time of use or level of impairment for marijuana, as it can remain in a person’s system for weeks. Additionally, if the employer is — or hopes to become — a federal contractor, they cannot have anything other than a zero-tolerance position against something that is considered illegal under federal law. Related: Insurance implications of legal marijuana: Questions continue to roll in (Photo: Shutterstock) What should employers do? That’s a good question. As mentioned earlier, even if more states continue to legalize medical marijuana, the issues remain until the federal law is changed. Regardless, employers should take steps now to ensure they’ve got policies to protect themselves. For example, employers should update their employee handbooks to clearly state their position on drug usage. Even if the employer wants to allow recreational or medicinal use in compliance with their state laws, it is recommended that they maintain the same position they would on alcohol use — it is not likely that an employee handbook would comment on legal alcohol consumption. However, one would expect to see comments forbidding reporting to work impaired or under the influence of alcohol. As mentioned, employers who work in an industry where federal contracts or grants are being used are obligated to abide by the Drug-Free Workplace Act. The same goes for industries that involve transportation or the use of heavy equipment. All employers need to provide a safe workplace to their employees, and drug policies should reflect this. Employers should review their drug policies often, update training for new and incumbent employees, and communicate with employees as laws change in the coming years. Related: Seeing marijuana through the haze of myths James W. Gow Jr., CPCU, AU is senior vice president, Property & Casualty Practice, at Corporate Synergies. Gow serves as a resource to both the Insurance Institute of America and the A.M. Best Company. He can be contacted at James.Gow@corpsyn.com.


About John Fagan

John is a Jacksonville native who grew up on the First Coast. He graduated from Bishop Kenny High School in 1975 and went to college at Florida State University where he completed a 4-year program in 3 years. John graduated from the Florida State University College of Business in 1978 and went straight into Florida State University College of Law. While in law school, John earned a position on the prestigious Law Review Board serving as its Business Editor. As a law student, John studied in the Oxford program. He also interned with the Florida Legislature working in the Florida House of Representatives Criminal Justice Committee. John was admitted to the Florida Bar in 1981. John began his legal career as a law school intern in the State Attorney's Office in Jacksonville in 1981. After his internship, legendary State Attorney Ed Austin hired John as a full-time Assistant State Attorney for the Fourth Judicial Circuit (Clay, Duval, and Nassau Counties). As a prosecutor, John tried jury and non-jury trial on charges ranging from DUI to Murder. In 1983, John moved from the State Attorney's Office to begin his career in private practice. He has practiced law for 30 years on the First Coast. For the last 20 years, John and his family have made Clay County their home. John limits his practice to personal injury and disability cases. While there are many fine attorneys in Clay County, John is one of only a few Clay County attorneys who limit their practice to personal injury and disability cases. John takes pride in helping clients resolve injury claims in ways that avoid the stress, uncertainty, and the expense of unnecessary litigation. Professional Activities John is the past President of the Clay County Bar Association and has served on the Board of the Clay County Bar Association from 2009-2013. He is an active member of the Florida Bar, and the Federal Bar of the Middle and Southern Districts of Florida. He is also a member of the American Association of Justice, the Florida Association of Justice, the National Organization of Social Security Claimants' Representatives, and the National Organization of Veterans' Advocates. Service to the Community John is involved in the Clay County Community serving as a member and Director of the Rotary Club of Orange Park, of the Clay County Bar Association, and the Putnam County Bar Association.
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