Employers need not get smoked by medical marijuana issues, risk manager advises
"One of the first things an employer needs to do is get informed," said Bill Nagel, president and CEO of Houston-based Risk Control Services. "What we find is there are employers that are not aware; brokers and insurance carriers are not keeping them aware. It's an opportunity for insurance professionals to educate their clients on this emerging issue."
It's an issue that Nagel believes will continue to expand, causing a plethora of concerns in the workers' comp system. Employers that are informed and armed with the proper legal advice and policies can keep the issue under control while still adhering to the laws of their state.
Currently, 16 states and the District of Columbia have medical marijuana laws on the books. Others, such as Florida, are being urged to consider similar legislation -- an effort Nagel believes is being advanced by proponents of legalized marijuana.
The issue raises a multitude of questions. For example, if a worker who has state permission to use medical marijuana is involved in a workplace accident, and a postaccident test shows marijuana use, can the employer discipline the worker? Probably not, according to Nagel. However, "most laws also make it clear that even if a worker becomes a registered medical marijuana cardholder, the individual is prohibited from ingesting or possessing the drug while at work," Nagel said.
In states that are considering legalizing medical marijuana, Nagel suggests employers get ahead of the issue to make sure any law that is passed includes such language. It behooves employers to stay abreast of efforts to pursue such legislation.
"We've seen some states where it's turned into a real problem because once the medical marijuana door is opened, it opens up abuses," Nagel said "Once they understand, individual employers get active to dissuade their legislatures from passing a law or, if they do, to have serious restrictions and qualifications for medical marijuana on the books."
States with medical marijuana laws.
In the jurisdictions with medical marijuana laws, employers should take action to make sure their companies are protected. As Nagel said, there is a danger in doing nothing.
"Say if you have an employee and you didn't test or have a policy. Could you be liable for allowing unsafe behavior?" he said.
It's imperative that companies clearly define what is allowed.
"Be aware of HR policies," Nagel said. "The fact that you do not have to accommodate the impairment in most states -- you don't have to put the person in the job and you can prohibit use on the job -- put that in policy guides, in handbooks, post it, before hiring someone, in the policies and procedures."
The language on such policies and other materials should be developed by following legal advice, Nagel said. It's important to make sure the wording adheres to all federal as well as state laws.
"Once they've gotten legal advice, make sure the employee understands they may not be disqualified based on a workplace preemployment drug screen if they test positive, but they won't be allowed to be impaired by medical marijuana use."
Nagel is not aware of any workers' comp insurer that has had to pay for medical marijuana, at least not yet. "We haven't heard it from the carriers, but I'm sure it will happen."
Another issue that will likely emerge has to do with the amount of marijuana, or THC, in a person's system. Since the drug stays in the body for several days, it remains to be seen what level of THC would constitute impairment.
"There will obviously be litigation to substantiate that," Nagel said. "The person could say, 'I'm not high, just stupid.'"
Read more at the WorkersComp Forum homepage.
October 10, 2011
Copyright 2011© LRP Publications