GRAPEVINE, Texas — One of the side effects of having 28 states with medical marijuana laws and eight states with legalized recreational use of what the federal government considers an illegal drug is confusion for employers managing their employee risk, experts say. 

Adding to the conundrum, the landscape is ever-changing, Patrick Foppe, St. Louis-based attorney with Lashly & Baer P.C., told risk managers and attorneys Friday at the CLM & Business Insurance Retail, Restaurant, and Hospitality Conference in Grapevine, Texas. 

“It seems like every week we see new laws introduced at the state level,” he said. 

Running down the list of different state laws, and how they apply to injured workers and pre- and during- employment drug screening, panelists had this bit of advice: Pay attention and outsource.

“If you are in a state that has these statutes and they don’t define what activities are permitted, you have to have a comprehensive policy and procedure and have experts in the individual states that can guide you,” Mr. Foppe said. 

Some states mentioned include Arizona, which states a positive drug test is not grounds for firing an injured worker — the employer has to prove impairment, according to Mr. Foppe. 

“On Colorado, the law prohibits employers from terminating a person’s employment based on lawful activity during nonworking hours,” he added. “Every state is different.” 

Case law is another front to watch, said panelist Nancy Green, Chicago-based executive vice present and strategic account manager at Aon Risk Solutions. But so far, because marijuana is still considered a Schedule I drug by the U.S. Drug Enforcement Administration, the courts have been good to employers who do not want workers using illegal drugs, she said.

“To date, in every case where an employee who is also a marijuana user has challenged an employer’s discipline following a positive test for marijuana, the employer has won,” said Ms. Green. “It still is possible to have an effective program and defend that program.” 

And the litigation won’t stop, said Mr. Foppe.

“(There are) lawsuits all over challenging employers … they are trying to get something (in case law) that will stick with employers so we have to be aware,” he said.  

The core issue with marijuana and employee testing is that the drug remains in a person’s system for weeks — meaning a worker can smoke marijuana two weeks before an injury and test positive, complicating the ability to prove impairment, said Carla Kinslow, a toxicologist with Rimkus Consulting Group Inc. 

“We are not talking days, we are talking weeks,” she said. 

“The question is whether the employer can take adverse action if the employee uses marijuana outside of the workplace, said Mr. Foppe. “Where it becomes gray is when you get this positive test result but you can’t show impairment, and states are all over the board on this.”