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Medical marijuana and Workers' Compensation

While on a federal level it is illegal to be in possession of marijuana under any circumstances, 18 states and the District of Columbia have made it legal to use marijuana for medical purposes. This conflict between state and federal laws raises a host of issues that directly affect the Workers' Compensation industry, including:

Generally, employers in states with medical marijuana laws can still prohibit the use of marijuana in the workplace. Employers that have "zero tolerance" workplace substance abuse policies can rely on the fact that marijuana is illegal under the federal law.

Employers' rights and obligations vary by state statute and many laws have yet to be tested in the courts. Some states, including Arizona, Connecticut, Maine and Rhode Island have included language in their medical marijuana laws that protect users from adverse employer actions such as refusing to hire, discharging, penalizing or threatening an employee based solely on the employee's status as a qualifying patient unless the employer is bound by federal law because of contracts, grants or strict U.S. Transportation Department regulations. Also some states extend these rights to primary caregivers.

However, there are important exceptions that protect against the use during working hours and coming to work impaired. And in most cases, health insurance providers, or any government agency or authority, cannot be held responsible to reimburse any person for the expenses of the medical use of marijuana.

When courts have issued rulings on workplace medical marijuana issues, they have been in the employer's favor. In Casias v. Wal-Mart Stores, Inc., a Michigan federal district court ruled that an employee who was terminated by Wal-Mart after testing positive for validly obtained medical marijuana had no legal claims for wrongful discharge; the Act does not impose restrictions on private employers. The Washington Supreme Court ruled in Roe v. Teletech Customer Care Management that Washington's Medical Use of Marijuana Act does not protect medical marijuana users from adverse hiring or disciplinary decisions based on an employer's drug test policy. In Ross v. RagingWire, the California Supreme Court ruled that it is not discrimination to fire an employee for using medical marijuana.

In an unpublished decision, Johnson v. Columbia Falls Aluminum Company, the Montana Supreme Court ruled that an employer is not required to accommodate an employee's use of medical marijuana under the federal ADA or the Montana Human Rights Act. In Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries, the Oregon Supreme Court ruled that federal law takes precedence over Oregon's medical marijuana law and employers in Oregon do not have to accommodate employees' use of medical marijuana.

For the most part, state laws do not specifically address Workers' Compensation. In light of the growing interest, The International Association of Industrial Accident Boards and Commissions (IAIABC) has asked states to respond to questions regarding their regulation of marijuana in Workers' Comp claims.

The findings indicate some states that have legalized marijuana for medical reasons -- such as Montana and Vermont -- have specifically disallowed it in their Workers' Comp systems. Other states, such as New Mexico, require a patient registry identification card, supervision and monitoring, and caregiver and practitioner licensing in the Workers' Comp system. A summary of the survey results to date can be found here.

The workplace implications of medical marijuana are evolving. It behooves employers to get expert legal advice, review and update their policies and ensure that all human resources personnel know how to handle medical marijuana issues as they arise. It's also important to closely monitor legislative and legal developments.