Editor's Note: This is the fifth article in the Visualize series on recreational and medical marijuana, From seed to smoke: Risks across the marijuana supply chain. Read the first article in the series: From seed to smoke: Marijuana concentrates and manufacturing risk.
In this article, we'll discuss some considerations related to marijuana use and employment-related issues, including workers’ compensation.
But wait: What is marijuana?
Let’s first define our terms. Marijuana is a type of plant that, if consumed properly, can give the user a “high,” generally induced by the psychoactive chemical THC. There also exist marijuana-related products that may not induce a psychoactive response to the user, such as cannabidiol (CBD). CBD is a non-psychoactive cannabinoid compound found in marijuana and hemp with apparent therapeutic effects.
An important aspect of marijuana use revolves around so-called “THC persistence.” According to AAA, the length of a user’s intoxication from marijuana varies widely by consumption method, potency of the product, and the user’s physiological characteristics. Smoking may induce immediate onset of intoxication, with intoxication lasting several hours; oral consumption may induce intoxication as long as two hours after ingestion, with longer-lasting intoxicating effects. Identifying marijuana intoxication is further complicated by THC’s persistence in a user’s body for long periods after intoxication. AAA notes that THC can be “detectible in blood or urine for weeks, with high variability between people. … Simply detecting any THC does not therefore indicate impairment.
In eight states and DC, so-called “adult,” “personal,” or “retail” marijuana and marijuana-related products may be used for non-medical (“recreational”) purposes, subject to certain limitations. In general, marijuana stores can only sell marijuana products to adults 21 years or older - and many states limit the per diem quantity of recreational marijuana or marijuana-related products that a single individual may purchase. Additionally, states typically enforce restrictions on driving under the influence of marijuana, limit the amount of marijuana an adult may possess on her person, and bar the use of marijuana products in public (with some exceptions).
Additionally, in many states, so-called “medical marijuana” and/or marijuana-related products may be purchased and used for medicinal or therapeutic purposes, subject to certain limitations.
According to the National Conference of State Legislatures (NCSL), 29 states and the District of Columbia have so-called “comprehensive medical marijuana” programs. The NCSL defines a “comprehensive” program as, in part, one that offers protection from criminal penalties for medical marijuana use; authorizes some kind of cultivation and distribution system for marijuana products; and permits the use of a variety of types of marijuana products, including the smoking or vaporizing of such products, when appropriate.
An additional 16 states have so-called “limited access” medical marijuana programs, which the NCSL defines as programs that permit the use of “low THC, high cannabidiol (CBD)” products “in limited situations or as a legal defense.” These programs tend to be more restrictive than their comprehensive counterparts. For example, Missouri’s CBD law, in part, limits use to those with “intractable epilepsy;” limits the CBD product to five percent or more of CBD and “no more than three-tenths of one percent of THC;” and prohibits home cultivation of marijuana products.
Unlike state regulations governing retail marijuana that permit any adult aged 21 or older to purchase marijuana products, only individuals with qualifying medical conditions may purchase marijuana or marijuana-related products (such as CBD-infused products) from a licensed dispensary establishment. What constitutes a qualifying medical condition varies by state. Comprehensive and limited medical marijuana programs generally permit certain licensed physicians to “recommend,” “authorize,” or “certify”
Marijuana use and employment
So how does marijuana use - particularly for medical purposes - impact employment? Does THC persistence play a role? How are states responding to these and other issues, if at all?
Let's dig into these and related questions a bit more.
Employers in the United States typically prohibit on-duty drug use by employees - and this prohibition usually extends to marijuana use. Additionally, many employers may seek to bar off-duty marijuana use as a condition for employment - particularly if the employer in question maintains contractual relationships with the federal government, due to the federal prohibition of marijuana.
When marijuana was illegal under both state and federal law, the issue pretty much ended there. But the spread of state marijuana laws that permit some medical and/or recreational marijuana use has complicated matters. Do employers need to accommodate off-duty and/or on-duty marijuana use for medical purposes? How do state marijuana laws affect drug-free workplace policies? How will workers’ compensation respond to medical marijuana?
Medical marijuana use in the workplace
States with comprehensive or limited medical marijuana programs have begun addressing at least some employment concerns related to marijuana use.
Regarding on-site marijuana consumption, states have generally included provisions in their medical marijuana statutes that accommodate existing employer drug-free workplace policies - including those that prohibit on-the-job intoxication. For example, Colorado's medical marijuana statutes do not “require any employer to accommodate the medical use of marijuana in any work place.”
But the matter becomes a bit hazier with off-site medical marijuana use.
Some states have included explicit anti-discrimination statutes under their respective medical marijuana laws in an effort to protect medical marijuana users within the state in certain situations. For example, Arizona's medical marijuana program prohibits employers from discriminating “against a person in hiring, termination, or imposing any term or condition of employment” or otherwise penalizing a person “based upon either the person’s status as a cardholder or a registered qualifying patient’s positive drug test for marijuana components or metabolites.” However, the requirement does not apply if an employer would lose “a monetary or licensing related benefit under federal law or regulations.” Nor does the requirement protect medical marijuana users if the patient “used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.”
But the matter may not be as clear-cut in other states. Take Colorado. As we noted, Colorado’s medical marijuana law does not require that employers accommodate on-site marijuana use. What about off-site use? The state's medical marijuana program appears to be silent on the matter - and in 2015, the Colorado Supreme Court addressed this very issue. At the time, the court unanimously upheld an April 2013 Colorado Court of Appeals ruling, which had generally found that federally prohibited but state-licensed medical marijuana use does not constitute “lawful activity” under Colorado’s Lawful Activities Statute. In this case an employee, who was licensed by the state to use medical marijuana, filed suit against his employer after being terminated subsequent to testing positive for the drug. The employee claimed that his termination violated Colorado’s Lawful Activities Statute, which, in part, prohibits an employer from terminating an employee for engaging in “lawful activity” outside of work and off the employer's premises. The employer argued that the use of medical marijuana was not “lawful activity” because it was prohibited under both state law and federal law. The appellate court concluded that because the employee’s “state-licensed medical marijuana use was, at the time of his termination, subject to and prohibited by federal law,” it was not a “lawful activity” for purposes of the related state statute.
Courts in California, Montana, and Washington have reportedly come to similar conclusions. Indeed, according to a recent Lexology article, “all of the state supreme courts that have addressed the issue have held that employers are not required to accommodate an employee’s use of medical marijuana.”
That is, until July of this year. As Lexology reported at the time, “the Massachusetts Supreme Judicial Court unanimously held that an employee may pursue a disability discrimination claim under state law against her former employer for failing to accommodate the employee’s use of medical marijuana.” The case involved a plaintiff who filed suit after she was dismissed from employment due to medical marijuana use, generally alleging, in part, discrimination for not providing “reasonable accommodation” for her marijuana use, as well as invasion of privacy for requiring drug tests. The court found, in part, that the plaintiff's disability discrimination allegations were “facially reasonable,” that off-duty medical marijuana use is permitted under state law, and that medical marijuana use “in violation of Federal law does not make it per se unreasonable as an accommodation.” Furthermore, the court reportedly found that the employer was required to “engage in the interactive process” to determine whether accommodation was possible even if the accommodation request was unreasonable.
So, to go back to our first question, how would medical marijuana use affect a commercial truck driver’s employment? The answer is: it may depend on the state and on the employer. Different states address medical marijuana and employment issues to some degree and courts have decided on some of these issues, but the landscape continues to evolve and answers aren’t always clear.
The picture doesn’t get much clearer regarding workers’ compensation. With regard to workers’ compensation, there are many issues to consider, including: (1) whether a workplace accident wherein the employee subsequently tested positive for marijuana is compensable under a state’s workers’ compensation law; and (2) whether workers’ compensation reimburses expenses related to purchasing medical marijuana and related products.
The first issue touches on the topics we discussed above - that is, the difficulty in ascertaining intoxication, whether the mere presence of THC disqualifies an employee seeking workers’ compensation benefits, and whether employer workplace policies apply. A 2015 case in Ohio illustrates the issue. At the time, the Court of Appeals Stark County, Ohio Fifth Appellate District found, in part, that an employee was entitled to workers’ compensation benefits for injuries sustained during his employment - despite the fact that the employee in question tested positive for marijuana subsequent to the accident, in violation of his employer’s workplace policies. However, the employee “testified that he did not use marijuana on the day of the injury, and the last time he used marijuana was probably a couple of weeks before the injury.”
States differ in how they address the second issue - that is, whether injured workers are eligible for reimbursement for their medical marijuana-related expenses.
For example, the Massachusetts program states that its regulations do not require “any health insurance provider, or any government agency or authority, to reimburse any person for the expenses of the medical use of marijuana.” Such entities may enact coverage or noncoverage criteria or related policies for payment or nonpayment of medical marijuana in their sole discretion.” New Mexico, on the other hand, states that an injured worker may use medical marijuana "when deemed ‘reasonable and necessary care’ under the Workers' Compensation Act. The injured worker must pay out of pocket, and is reimbursed per fee schedule for the cost of medical cannabis deemed necessary in the workers’ compensation claim.”
State courts have also weighed in on the issue, with differing results. For example, the New Mexico Court of Appeals has addressed marijuana and workers’ compensation at least twice. In both 2014 and 2015 the Court ruled, in part, that workers’ compensation extends to medical marijuana to treat an on-the-job injury. On the other hand, in 2013 the California Workers Compensation Appeals Board found, in part, that a carrier was exempt from reimbursing medical marijuana. (For a list of state and court actions related to medical marijuana workers’ compensation, see this American Bar Association information sheet, current as of March 2017.)
As with so many questions around marijuana-related risks, issues related to medical marijuana in the workplace and workers’ compensation are evolving rapidly, with different states addressing the issues differently. This evolution is further affected by the current prohibition under federal law. The ISO Emerging Issues team continues to research and track potential considerations related to marijuana. You can find more of our research on ISOnet (ISOnet login required).
In our next article in our marijuana series, we’ll look at the differences between state and federal marijuana laws and their impact on the marijuana market.