2025 update: marijuana use and workplace safety

With no resolution of the conflicting state and federal laws, an evolving patchwork of state laws, drug testing dilemmas, no reliable real-time impairment test, and inconsistent court rulings, marijuana use continues to be a thorny issue for employers. Here's an update to help employers navigate this challenging issue:

Study : Recreational marijuana laws have increased work comp claims

The Workers' Compensation Research Institute (WCRI) has recently published Impact of Recreational Marijuana Laws on Workers' Compensation Benefits, a study examining how the adoption of state recreational marijuana laws (RMLs) impacts workers comp claim frequency and costs. After analyzing comp claims filed from 31 states between October 2012 and March 2022 that had reached 12 months of maturity, researchers arrived at four key findings:

• Claim frequency increased. On average, over 1.7 years after legalization, states saw the frequency of workers comp claims increase by 7.7 percent. After five years, that increase jumped to 15 percent. Disturbingly, the increases were largest among workers in safety-sensitive positions (11.7 percent) and for workers in physically demanding positions (9.9 percent).
• Per-claim medical costs declined. RMLs "reduced medical payments per claim by $207 (or 5.7 percent) at 12 months of maturity." RMLs also led to reductions in the duration of temporary disability (TD), which may reflect the type of injury and the decline in chronic opioid prescriptions. While soft tissue injuries, including strains, sprains, cuts, and bruises, saw an increase in frequency of 8.1 percent, more severe injuries such as fractures, motor vehicle accidents, and neurological injuries did not increase. However, the researchers cautioned that the report understates the number and types of injuries, since it only includes approved claims. If a claim was declined because a worker was impaired, it would not be included.
• Decreases in prescription utilization and costs drove the cost reductions. There was a 13.9 percent reduction in prescriptions, including an 11.7 percent drop in pain medication prescriptions per claim. Opioid prescriptions fell by 9.7 percent.
• There was no change in indemnity benefits nor total claim duration, except for in the later years after RML adoption.

Valuable insights for employers

The study reveals that more injuries do occur when recreational marijuana is legalized, but they don't necessarily translate into higher costs, which complicates the risk assessment for businesses. Frequency can indicate systemic safety and cultural issues and impact Experience Mod ratings more directly than severity. Researchers note that recreational use of cannabis could lead to intoxication or withdrawal symptoms at work and state the results "point to a clear increase in the risk of work-related injuries after (marijuana law) adoption."

ACOEM guidelines on cannabis for pain treatment

In January, the American College of Occupational and Environmental Medicine (ACOEM) published guidelines which do not recommend cannabis for any pain and advise against its use by workers in safety-sensitive roles. It states some trials show cannabis may be marginally more effective than a placebo for neuropathic pain, but no meaningful evidence exists supporting its use for acute or postoperative pain.

Federal developments

DEA and rescheduling marijuana

A public hearing to consider a proposal to reclassify cannabis from Schedule I to Schedule III under the federal Controlled Substances Act (CSA), which President Trump backed during his campaign, was postponed in January pending resolution of an appeal. Recently, the Drug Enforcement Administration (DEA) notified an agency judge that the marijuana rescheduling process is still on hold with no future actions scheduled. Rescheduling would recognize medical use of cannabis under federal law and would allow for research and development of cannabis-based drugs. It would not make recreational marijuana legal federally, authorize interstate commerce, or override any state-level prohibitions.

During his confirmation hearing before the Senate Judiciary Committee, Terrance Cole, President Trump's nominee to lead the DEA, stated that reviewing the proposal to reschedule cannabis will be "one of my first priorities" and it was "time to move forward" with the process. However, he repeatedly declined to commit to support the proposed rule. Mr. Cole worked at DEA for 21 years and currently serves as Virginia's secretary of Public Safety and Homeland Security (PSHS). His nomination is awaiting full Senate confirmation.

U.S. Supreme Court sides with trucker who lost job for cannabis use

In April, the Supreme Court issued a 5-4 decision in Medical Marijuana, Inc. v. Horn, holding that the loss of employment could be considered business damage under the RICO civil cause of action, and the case could proceed. A commercial truck driver suffering from chronic pain purchased a product advertised as THC-free, called Dixie X. His employer randomly selected him for drug screening; he tested positive for THC and was fired.

It's important to note that this case did not address the broader clash between state legalization and federal prohibition, was focused solely on RICO language, does not affect laws in states that protect lawful off-duty cannabis use, and does not create any new employee rights around cannabis use. It does, however, open a new litigation avenue - employees can now try to recover lost wages via a RICO claim against the manufacturer.

The message for employers is to highlight the importance of federal preemption in workplace drug testing,explaining state legalization does not change federal testing requirements and using any product advertised as "THC-free" still carries risk. Inform employees that if they consume hemp/CBD products, they must be sure of the source and testing standards, because a positive result could cost them their job.

State actions

Recreational marijuana is legal in 24 states and D.C. and medical marijuana is legal in 39 states and D.C. (see Map). Cannabis legalization largely stalled in 2024, and bills are not faring better in 2025. Eleven states have considered but not passed legislation.

Existing laws vary significantly by state. Key considerations are whether the state protects off-duty marijuana use, whether employers are allowed to discipline or terminate employees for positive drug tests, and whether accommodations are required for legal medical marijuana patients. In all states, federal laws override state protection. Here are some recent laws and court decisions.

California

• Effective January 1, AB 2188 restricts employers from discriminating against employees for off-the-clock cannabis use and prohibits reliance on traditional urine tests.
• The Division of Workers Compensation (DWC) has proposed new treatment guidelines that would prevent cannabis prescription for pain management within the Medical Treatment Utilization Schedule, aligning with ACOEM guidelines. Cannabis consumer and medical marijuana advocates expressed opposition at a March public hearing. The DWC has not issued a final order adopting the guideline.

Florida

• Hillsborough County has appealed the court's decision in Giambrone v. Hillsborough County, which found the Medical Marijuana Law requires employers to allow off-site medical cannabis use under certain conditions.

Maryland

• Gov. Wes Moore has signed several cannabis bills, including one that automatically shields records of pardoned cannabis convictions. The Senate advanced a bill (SB 1023) in March 2025 that prohibits state and local officials from disciplining fire and rescue workers for off-duty cannabis use. It's under consideration by the House Economic Matters Committee.

Massachusetts

• On June 10 there was a hearing on a bill (H2179) that would prohibit most pre-employment cannabis testing.
• House Bill 2169 would require workers' compensation insurers to cover medical marijuana and is in the Joint Committee on Labor and Workforce Development. In 2020, the state Supreme Judicial Court ruled it was not compensable.

Nebraska

• The lone state to pass a referendum on medical cannabis legalization in 2024 is embroiled in litigation attempting to prevent the program rollout. On May 20, a legislative bill aimed at establishing a regulatory framework for implementation failed. The implementation of the medical cannabis program will now be left to the Medical Cannabis Commission.

North Carolina

• The North Carolina Compassionate Care Act, which would legalize medical cannabis for certain conditions, has again passed the Senate but it is questionable how far it will progress in the House. H1011 was filed on April 15, passed its first reading on April 16, and was referred to the Committee on Rules, Calendar, and Operations of the House.

Pennsylvania

• Lawmakers are divided on how to approach cannabis legalization, debating between a state-run model and conventional private market. On May 7, the House of Representatives passed a bill to legalize cannabis for adults from state-run stores. Less than one week later, the Senate Law and Justice Committee defeated the bill.
• In Schmidt v. Schmidt, Kirifides and Rassias, PC, the state Supreme Court ruled that CBD oil prescribed for pain management of a workplace injury qualifies as a reimbursable medical expense under the state's Workers Compensation Act.
• In Davis v. The Albert M. Higley Company, LLC, a federal court ruled that a job applicant who had a job offer rescinded could not allege disability discrimination under the Pennsylvania Human Relations Act (PHRA) for medical marijuana use. However, it did allow a claim under the Medical Marijuana Act (MMA) for unlawful refusal to hire, indicating potential protections for medical marijuana cardholders against employment discrimination.

Texas

• Several communities have voted to decriminalize cannabis, leading to lawsuits from the Attorney General. A House committee has approved a Senate-passed bill prohibiting local entities from placing items on ballots that would conflict with state drug laws.

Virginia

• Governor Glenn Youngkin vetoed a bill to establish a retail marketplace for recreational cannabis. While recreational cannabis became legal in July 2021 there is no legal retail market for it.
• In January, a U.S. Court of Appeals upheld a law regulating the sale of hemp products based on their total tetrahydrocannabinol (THC) concentration.

Strategies for employers

Employers use various strategies to address the issue based on state and local laws, type of position, and workplace culture. Here are eight approaches to consider:

1. Behavior-based policies. Employers train supervisors to identify signs of impairment and respond based on performance or behavior-not just test results.
2. Role-based testing policies. Employers differentiate between safety-sensitive roles (e.g., construction, transportation) and non-safety-sensitive roles (e.g., office workers). Some employers go further and provide role-specific expectations for marijuana use.
3. Changing pre-employment screening. Dropping THC from the pre-employment drug panel unless the role legally requires it.
4. Learn about new methods of testing. There have been promising developments in oral and breath testing that may more accurately detect current impairment.
5. Expand employee education and assistance programs. Educate employees on responsible use including the impacts on health, performance, work comp claims, and workplace safety. Provide access to counseling, EAPs (Employee Assistance Programs), or other programs.
6. Clear communication of off-duty use. Ensure compliance with state laws, define off-duty use, highlight the importance of federal preemption in workplace drug testing particularly for safety-sensitive roles, define impairment and how it will be determined, specify disciplinary consequences.
7. Accommodate medical marijuana. In states that require it, create processes for medical marijuana users to request accommodations under ADA-like rules and evaluate on case-by-case basis focusing on essential job functions.
8. Evaluate zero-tolerance policies. In states where marijuana is legal, rigid traditional policies where any trace of marijuana is grounds for discipline or termination may be difficult to enforce and pose legal risks. However, employers can and should prohibit employees from impairment by cannabis at work. A more practical approach may be to redefine "zero-tolerance" based on impairment and use during working hours - any on-the-job impairment or use of marijuana is unacceptable. For safety-sensitive positions, (e.g., operating machinery, driving) a stricter, even absolute zero-tolerance stance may still be appropriate and legally defensible.