With changes in state and local statutes, court decisions trending toward acceptance and protecting employee rights, and the burgeoning popularity and availability of unregulated CBD, it’s no surprise that many employers and insurers identify marijuana as one of the top challenges in maintaining a safe workplace. Here’s an update:
Legislation affecting workers’ comp
While there has been much activity on the legislative front related to medical marijuana and the workplace, the landscape remains hazy for most employers. 2019 enacted legislation includes: Illinois legalized marijuana for recreational purposes; Nevada prohibits employers from refusing employment to applicants who test positive for marijuana in a preemployment drug test; New Jersey amended its medical marijuana statute to prohibit employers from taking adverse employment actions against employees based solely on their status as a medical marijuana patient; and Rhode Island enacted legislation that employers are not required to pay for medical marijuana costs, but employers may not refuse to “employ or otherwise penalize a person solely for their status as a medical marijuana cardholder,” with certain exceptions. In April, the New York City Council passed a law that prohibits employers from testing applicants for marijuana.
Nonetheless, lawmakers in Hawaii, Kansas, Maine, Maryland and Vermont considered, but did not pass various proposals that would have allowed or required reimbursement for medical marijuana. A bill in Kentucky to clarify that employers and insurers are not required to reimburse an injured worker for marijuana failed.
At the federal level, while decriminalization is viewed as unlikely in the short term, there are pending proposals to decriminalize marijuana (S1552), allow state regulation without federal interference (HR2093), and protect financial institutions and insurance companies that provide services for legitimate cannabis businesses (HR1595).
Shift in court case decisions favors employees
A recent article in the National Law Review, “Courts Are Siding with Employees Who Use Medical Marijuana,” notes that while the first wave of court cases related to marijuana legalization and the workplace tended to side with employers, the tide is now turning. “Recent decisions in federal and state courts indicate that employers need to proceed with caution when they make employment decisions concerning drug tests for cannabis use.”
In Arizona, the court found an employer wrongfully terminated an employee who was a registered user of medical marijuana and failed a drug test following an injury. In Delaware, a court held that a medical marijuana user may proceed with a lawsuit against his former employer after a positive post-accident drug test result for marijuana led to his termination. In Connecticut, a federal judge ruled that the employer violated an anti-discrimination provision of Connecticut’s medical marijuana law when it withdrew the job offer to a “qualified patient” using medical marijuana.
In New Jersey, an appeals court ruled that medical marijuana use is covered under the state’s ban on disability-based employment discrimination. The case, Wild v. Carriage Funeral Holdings, Inc, is expected to be heard by the state supreme court. In Oklahoma, the court of appeals concluded that the presence of THC in an employee’s blood after a workplace accident does not automatically mean that the employee was intoxicated and could be denied workers’ compensation benefits. The case, Rose v. Berry Plastics Corp, is on appeal to the state supreme court.
Employers and insurers were victorious in Florida when a workers’ compensation judge (JCC) found that Florida’s medical marijuana statute prohibits reimbursement under workers’ compensation, and that requiring employers and insurers to pay for a worker’s medical marijuana would violate the federal Controlled Substances Act. The JCC also determined that employers and insurers should not be required to pay for a worker’s medical evaluation to obtain medical marijuana because the cost of the evaluation would be part and parcel of the cost of obtaining marijuana. The case, however, has been appealed to Florida’s First District Court of Appeal.
CBD is everywhere and unregulated
Late last year, the Agricultural Improvement Act removed hemp-derived CBD with less than 0.3% Tetrahydrocannabinol (THC), the principal cannabinoid in cannabis, from the list of Schedule I drugs. The popularity of CBD, cannabinol-based products, skyrocketed with an aggressive marketing campaign, promoting its value as an alternative to pain meds with none of the psychoactive effects associated with cannabis. While states and local governments are beginning to make their own regulations for the hemp industry, the void in oversight has given rise to shady companies looking to capitalize on the burgeoning CBD market.
Available online, in supermarkets, coffee shops, convenience stores, retail establishments, and pet stores, there is so much variability in the potency and purity of CBD products, it is raising havoc in the positive testing for THC. Packaging for CBD oil may claim to be THC-free or below traceable limits, but they can contain enough to be detected during a drug screen.
While the DOT has made it clear a positive test for THC as a result of CBD use will not be excused, employers are struggling with how to address situations where an employee defends a positive drug test by claiming use of CBD.
More research on medicinal benefits and testing, but few definitive results
There continue to be many studies with varying results and heated debate about the medicinal benefits of marijuana. Addressing the often-discussed association between medical marijuana and lower levels of opioid overdose deaths, a study by the Proceedings of the National Academy of Sciences found it unlikely that medical cannabis – used by about 2.5% of the U.S. population – has had a large offsetting effect on opioid overdose mortality.
While more testing options are being researched, tests can only detect tetrahydrocannabinol components, which means that the individual used it anywhere for a day or two to several weeks prior to testing. It does not make a determination of impairment. While some states have adopted laws about levels for driving under the influence, there is still no agreement about levels of impairment.
All of this is compounded by the fact that there are few state or federal guidelines concerning maximum, minimum, or even standardized dosages for treatment. There are only three prescription drugs derived from cannabinoids that are approved by the FDA.
What employers can do
Employers need in be diligent in their focus on mitigating cannabis-related risks in their workplaces:
- Stay abreast of state regulations and recent court cases.
- Continue to update drug and fitness for duty policies with legal counsel. Determine how CBD use will be treated.
- Train supervisors to detect signs of possible impairment and what to do when they suspect impairment.
- Discuss with your testing provider how CBD is monitored.
- Educate employees that almost all CBD products are not regulated by the FDA and to adopt a “buyer beware” approach. Consumers purchasing online or at unlicensed retailers are taking a risk of products that contain THC and additives such as pesticides or chemicals, that can result in a positive drug test.
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