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Marijuana Legalization Update: July 2019


What started out several years ago as a confusing mess of conflicting state and federal laws regarding marijuana sale, possession and use has now evolved into a confusing mess of conflicting state and federal laws. There is little hope for any change in the near term, as the Federal government digs in with decades-old policies, while each of the states is going their own way with legislation and court action.


Under federal law, marijuana is outlawed by the Controlled Substances Act, which classifies marijuana as a Schedule I drug.  This means that the federal government has decreed that cannabis is highly addictive and has no medical value, putting marijuana in the same class as heroin, LSD and MDMA (“Ecstasy”).  Because of its Schedule I status and the federal government's insistence that there is no valid medical use for marijuana, little research has been done over the decades regarding the uses and dangers of marijuana.


The District of Columbia, home of the same federal government that maintains that there is no medical use for marijuana, has legalized both medicinal and recreational use.  Nevertheless, federal government employees who test positive for marijuana are subject to dismissal.  And Federally-insured banks are prohibited from opening accounts for marijuana growers and dispensaries, even in states where this is legal.


Despite the federal position, and bowing to the will of its citizens, almost every state has now legalized the use of marijuana to some degree or other, ranging from allowing casual recreational use to allowing use for medical purposes under very strict circumstances.  In fact, only three states currently have a total prohibition on the use of lawful marijuana, and enabling legislation is underway in two of those three.



Complicating the problem is the fact that there is no valid medical test that shows the level of current impairment from marijuana, if any.  A urine test can show that someone has used marijuana at some time during the past two weeks, but that has little or no bearing on whether the individual is impaired at the time of testing.


These conflicting laws place employers in a very difficult situation, and the situation that varies significantly from state to state in the case of multiple-location employers.  Among the questions that have arisen:


  • Can an employer fire an employee for testing positive for marijuana?

  • Can an employer and insurance carrier deny workers compensation benefits to an injured employee who tests positive for marijuana?

  • Jumping to the other end of the legal spectrum, if an employee is injured in a state that has legalized medical use of marijuana, and desires to use marijuana as part of his treatment, can he force the insurance company to pay the cost?  (Some recent studies have shown that marijuana does a better job of treating severe pain than opioids while being less addictive.)

  • What are the laws governing marijuana use in my state?

  • If marijuana is legal in my state and I am a marijuana user, how can legally using it off-the-job affect my job?

  • What recent court rulings affect the use of marijuana by employees in states where marijuana use is legal?


Here are some recent articles that shed light on some of these questions:


Marijuana Legalization - Five Things Employers Need To Know

https://www.ncci.com/Articles/Pages/II_Insights_MarijuanaFocusupdate.aspx


The Marijuana Conversation: Questions Employees Are Asking

https://www.ncci.com/Articles/Pages/II_Marijuana-Conversation-Employee.aspx


Court Case Update (Marijuana and other topics)

https://www.ncci.com/Articles/Pages/II_Insights_CourtCase-Update-April2019.aspx


And, a recent peer-reviewed study shows an unexpected twist.  Flying in the face of expected results, workplace fatalities are 20%-34% lower…


Workplace Fatalities Sharply Lower In States That Have Legalized Medical Marijuana

https://www.ishn.com/articles/110877-workplace-fatalities-sharply-lower-in-states-that-have-legalized-medical-marijuana


TAKEAWAY:  With regard to how marijuana use affects businesses and employees, we remain in a wait-and-see mode.  Many questions remain and the legislatures and courts in various states are coming to different conclusions as to the proper course of action.


For now, the best advice is to keep aware of the current laws in the state(s) where you do business, and do your best follow them.  When an accident occurs, and you suspect that drug use might be involved, discuss this with your claims adjuster immediately to make sure he or she understands the situation.

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