Medicinal marijuana use is legal in more than two-thirds of the U.S., but employers still have questions about what workers’ compensation insurance will and won’t cover and what they can do about employee marijuana use.
One of the central questions: Can an employee who has a workplace injury and tests positive for marijuana be denied workers’ compensation benefits?
The answer to that is, it depends.
Until marijuana is legalized at the federal level – and no one has any clear idea of when or, really, if that will happen – employers will most likely continue to find inconsistencies between state and federal regulations regarding medical cannabis products and workers’ compensation.
Greater clarity may be in the offing. The U.S. Supreme Court in early 2022 asked the U.S. Solicitor General to submit its thoughts on whether a workers’ compensation insurance carrier paying for an injured worker’s medical marijuana may be in violation of the federal Controlled Substances Act. The court’s request stems from appeals of two Minnesota Supreme Court decisions. In Musta vs. Mendota Heights Dental Center and Bierbach vs. Digger’s Polaris, the Minnesota Supreme Court held that ordering a workers’ compensation insurance carrier to reimburse the cost of medical marijuana is a violation of federal law.
Because some states allow reimbursement while others don’t, employers nationwide are watching to see what the court decides.
Until that happens, what follows are some of the most common questions we’ve fielded around cannabis use, the workplace and workers’ compensation insurance.
Q: Can employees use medical marijuana to treat work accidents?
A: Yes, provided they have a legal, state-issued medical marijuana ID card. Commercial driver’s license holders and employees in other safety sensitive positions, however, may be restricted from returning to their duties for a period following such use. Requirements for obtaining such a card generally involve having a physician confirm the employee’s condition as qualifying for medical marijuana followed by an application process and fee.
Q: Are employers required to allow medical use of marijuana by their employees?
A: Not at all. Even in states where it has been legalized, employers are not required to accommodate medical marijuana use in the workplace. They also may continue to enforce drug policies and prohibit their employees from using or being impaired by marijuana at work, even for employees who are using medical marijuana based on a doctor’s recommendation and have a registration card. Also, everyone is subject to random drug-testing; there are no exemptions for medical marijuana users.
Q: Should employers require a drug test to see if there is marijuana in an injured worker’s system?
A: If you suspect marijuana was a factor in the injury, it would be smart to get the testing done. You’ll also want to be sure you have written policies in place spelling things out, including when and under what circumstances drug testing will be required. It’s also important for you to be sure your employees understand that their non-medical workers’ compensation benefits can be reduced by half if a drug test shows an intoxicant – even a legal one like alcohol or marijuana – in their system at the time of the injury. Be sure you include that information in your employee handbook and post it prominently.
Q: What happens if the test shows marijuana in my employee’s system?
A: Under most state laws, if a drug test finds evidence of marijuana in a worker’s system during work hours, then it is presumed that the worker was intoxicated and the injury was caused by the intoxication. As a result, lost wage benefits can be reduced or even eliminated. Moreover, the insurance carrier could argue that because the worker was under the influence of marijuana at the time of the injury, they are responsible for their own medical bills.
Q: Will workers’ compensation pay for a medical marijuana prescription?
In some states, employees injured on the job have argued and won reimbursement for medical marijuana from carriers. But the laws are changing to specifically rule out such reimbursements. As we noted above, the Minnesota cases the U.S. Supreme Court may hear should help clarify, if not resolve, this question.
Q: How can employers better protect themselves?
There are a few key steps you can take immediately to shield yourself against marijuana-related claims:
- Adopt, disseminate and consistently enforce written drug-free workplace, drug use and/or drug testing policies.
- Make sure you’ve updated employee handbooks, drug testing policies and procedures, policies accommodating disabilities.
- Train managers to identify marijuana impairment and on how to have conversations regarding medical marijuana with employees.
- Use certified third-party testing resources.
The bottom line: Laws regarding medical marijuana in the workplace are continually changing. But even with a medical marijuana card, drug use at work is not permissible, workers’ compensation benefits can be lost, and employers are within their right to terminate those who come to work under the influence.
The Mahoney Group is one of the largest independent commercial insurance and employee benefits brokerages in the U.S. For more information, contact us online or call 877-440-3304.
This article is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel or an insurance professional for appropriate advice.