As of 1 January 2020, marijuana was legal for medical purposes in some 33 states. And in 11 of those, including California, recreational marijuana is also now legal. So, how does legal marijuana affect your workers’ compensation insurance?
It’s safe to say the legalization of marijuana has not been a universally popular development. But whatever your personal views may be, you need as a business owner to make sure that your employment practices reflect the new legal reality – and this includes your workers’ compensation insurance.
What Workers’ Compensation Traditionally Covers
“No-fault” workers’ compensation insurance has been around for more than a century; and until recently, the types of injury, illness and treatments that it covered were well-established.
The advent of legal marijuana, however, has given rise to a number of possible new scenarios of which both employers and employees need to be aware.
One important question to have arisen, for example, is whether the cost of medical marijuana prescribed for the treatment of an injury or illness suffered in the workplace should be recoverable through workers’ compensation insurance.
Another all too plausible situation is that of the employee who suffers a workplace injury while under the influence of recreational marijuana.
Some Possible New Scenarios
Marijuana and medical treatment
In the first case, although there is increasing evidence of the efficacy of medical marijuana in treating a range of conditions, particularly as an alternative to opioids in the field of pain relief, it remains illegal under federal law. And this may allow the insurer to avoid reimbursing the cost, even if the patient, physician, and employer believe it to be the most appropriate treatment.
It’s therefore very important that you confirm exactly what treatments your insurer will or will not pay for, and ensure that this is communicated clearly to all workers and physicians at the outset of the claims process.
Impairment and liability
The question of the “stoned” or intoxicated employee is also a complex one. As with alcohol, you are entitled to carry out a test for drugs if you have reasonable grounds for suspecting that an employee who has been involved in an accident may have been impaired in this way. And a claim may be reduced or denied if that impairment was a material cause of the incident, regardless of the legality of the substance in question.
Likewise, you are entitled to include marijuana in a “drug-free” workplace policy and may receive a credit from your insurer for doing so. But you could be at risk of a discrimination suit if you fire or otherwise sanction an employee merely for taking a legal drug.
Finally, all of the above needs to be read with the understanding that legal marijuana is still a new phenomenon and that both the legislation and case law are developing rapidly.
Talk to the Experts
So it’s wise to consult an employment attorney to make sure that your workplace practices are compliant. And it’s also important to take expert advice to ensure that you have the right insurance policy for your needs and that you’re doing everything possible to mitigate your risks and reduce your costs.
That’s exactly the service you’ll get at Brashears, where our objective is to provide all our business clients with a tailored, individual solution that exactly suits their needs.