Nearly half of the country (21 states) permits the use of recreational marijuana among adults ages 21 and older, and additional 37 states have legalized marijuana for medicinal purposes. However, as an employer it is important to remember marijuana is still illegal on the federal level and identified as a Schedule I drug under the Controlled Substances Act. Workplace drug utilization is not permissible and you are within your rights to ban employees from marijuana use while on the job. Even workers who possess a medical marijuana card or are protected under the Americans with Disabilities Act (ADA) could be terminated for working under the influence. 

How Marijuana Impacts the Workplace

Changes in state marijuana legislation have forced employers to reevaluate existing workplace drug policies and procedures. The following are some of the challenges businesses face.

Threats to Employee Safety

Increases in Workers' Compensation Claims

Employee injuries related to marijuana use could subsequently increase your workers’ compensation claims. Some state-specific legislation has created various workers’ compensation employer difficulties. State legislatures are challenged to approach workers’ compensation benefits for injured employees who test positive for marijuana as there is not yet a widely recognized impairment level standard.

Marijuana can remain in an individual’s system for months. This could cause complications when determining whether an employee’s marijuana use contributed to their workplace injury. Additionally, many state courts remain undecided regarding employee medical marijuana treatment by workers’ compensation programs for occupational injuries. Currently, only six states either allow or require reimbursement, while an additional 10 states are reviewing the matter. 

Fleet Driver Marijuana Usage Concerns

The legalization of marijuana and other cannabinoids has raised concerns regarding its impact on commercial driving road safety. The Insurance Institute for Highway Safety reported several states saw crash rates surge following recreational marijuana legalization. National Highway Traffic Safety Administration data found cannabinoid use among fatally injured drivers doubled over the last decade. 

Commercial driver marijuana use puts employers at risk for road incidents. Some states have adopted zero-tolerance policies that prohibit drivers from having any trace of marijuana or other cannabinoids in their systems. Additional states have established legal marijuana limits that designate usage levels before getting behind the wheel. The Department of Transportation (DOT) currently prohibits commercial drivers from using any Schedule I substance and subjects drivers to drug testing. Employer compliance will become more crucial as more states are expected to address drug-impaired driving programs.

Employment Practices Liability (EPL) Exposures to Your Business

Preemployment or post-workplace-accident drug tests are standard for many organizations. Drug testing protocols could influence discrimination allegations and subsequent EPL claims if employees face workplace consequences from positive medical marijuana test results. 

In response, some states have enacted legislation restricting an employer’s ability to perform marijuana testing. Several states have also enabled specific employment protections for authorized medical marijuana cardholders to prevent potential discrimination. 

Loss data from Advise suggests 40% of marijuana-related EPL claims have stemmed from wrongful termination allegations. Employers must take notice as recent marijuana-usage employment lawsuits have ruled in the employee’s favor. Businesses with outdated marijuana testing and use policies and procedures have the additional risk of EPL claims.

Minimize Your Workplace's Marijuana-Related Risk

Despite the challenges created by marijuana legalization, several measures can minimize your business’ exposures:

• Educate employees about workplace safety risks associated with marijuana usage. 
• Adopt an appropriate marijuana usage policy to prevent job impairment issues and provide employees with proper support. Your policy should:
  • Establish a zero-tolerance approach for safety-sensitive positions (e.g., commercial drivers, dangerous equipment, heavy machinery operators). 
  • Outline marijuana workplace usage reporting procedures.
  • Define acceptable legal marijuana use (e.g., outside of work hours).
• Train supervisors and managers to detect and respond to potential marijuana-related workplace impairments. 
• Provide workers with access to an effective employee assistance program (EAP) to aid those with marijuana-related drug abuse challenges.
• Partner with legal counsel to:
  • Verify your workers’ compensation program complies with all federal and state-specific legislation as it pertains to employees’ marijuana usage.
  • Certify your organization is compliant regarding workplace-injury employee benefits when workers test positive for marijuana.
  • Verify your business is observing all laws of workers’ compensation reimbursement for medical marijuana treatment.
  • Determine whether workplace marijuana drug tests and/or basing employment decisions on an employee’s marijuana usage are compliant with any applicable federal and state-specific legislation. 
• Update drug testing protocols and related employment practices when necessary. 
• Inform employees promptly when marijuana-related workplace drug policies, procedures and program offerings change.
• Verify compliance with testing policies if your company operates in multiple states. 
• Educate employees about the company’s marijuana-use policy and the repercussions for failed tests, including random, post-accident or reasonable suspicion tests.

We’re Here to Help Protect Your Employment Practices

Remaining compliant with medical marijuana laws can be frustrating as federal and state legislation often conflict. Without the proper knowledge and coverage, your business could be at risk. If you have additional questions about medical marijuana risk or if your business is properly covered, connect with a member of our team.