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Legal marijuana blurs workplace drug policies

Employers challenged by conflicting laws


NEW YORK — Expansion of legalized marijuana use for medicinal and/or recreational purposes figures to compound an already complicated web of management and workers compensation liability issues for employers.

Since California became the first state to permit the sale and possession of medicinal marijuana in 1996, 22 other states and the District of Columbia have passed similar legislation.

More recently, recreational marijuana use has been legalized in four states — Alaska, Oregon, Washington and Colorado — as well as Washington, D.C.

As a result, employers with operations in states where marijuana prohibitions have been relaxed or vacated are challenged to enforce workplace anti-drug policies, experts said during Business Insurance's 2015 Risk Management Summit in New York.

“Marijuana in the workplace is not going to be easy to deal with for any employer,” said Paul Millus, of counsel at Meyer, Suozzi, English & Klein P.C. in New York. “It still has no accepted use as far as the federal government is concerned, and that is not going to change for quite some time. So you're going to have this continuous conflict between the federal government and the states, and it's going to give employers fits.”

In particular, the experts said many employers could see more employment practices liability claims, driven primarily by lawsuits brought by employees who were fired, disciplined or denied a job based on their use of marijuana in violation of company policies.

So far, though, Mr. Millus said employers have been mostly successful in defending those lawsuits in state and federal courts, thanks in large part to the federal government's overriding prohibition on marijuana possession and use.

“Employers should stick to their guns for now,” Mr. Millus said. “Right now, we think employers have an obligation to uphold state laws and federal laws; and under those circumstances, the best advice one could give would be to follow the law. So as long as you've got a valid, nondiscriminatory drug policy, apply it irrespective of the legality of marijuana in the workplace.”

The experts were less optimistic about the spreading legalization of marijuana when discussing its potential for long-term negative effects on workers compensation claims.

Specifically, they worried that the use of marijuana to treat chronic pain could increase at pace similar to the already costly rise in treatments involving opioid painkillers.

“We know that the use of opioids has not been very successful, so now we're moving towards medical marijuana,” said Keith Rosenblum, a senior workers compensation risk control strategist at Lockton Cos. L.L.C. in Kansas City, Missouri.

Excluding catastrophic losses, which Mr. Rosenblum said represent about 3% of workers compensation claims overall, the majority of large-loss workers comp claims can be identified by some manner of delayed recovery, typically chronic pain.

“What you end up with is a creeping catastrophe claim,” Mr. Rosenblum said. “Those claims always have a component of chronic opioid treatment.”

The experts said employers can collaborate closely with their pharmacy benefit managers, workers comp insurers and other external services providers to prevent an escalation in chronic pain or injury treatments that include medical marijuana.

“As employers and insurers, we don't want individuals in the workplace using marijuana or opioids,” said Dr. Teresa Bartlett, senior vice president and medical director at Sedgwick Claims Management Services Inc. in Troy, Michigan. “They're not something we want a vibrant, productive workforce taking.”

One specific course of action Dr. Bartlett recommended employers take to prevent sudden spikes in workers comp claims including medical marijuana prescriptions is requiring PBMs to conduct point-of-sale utilization reviews for all marijuana-related claims.

“If we can prevent a drug from ever being dispensed because it's not appropriate, then that can really help save some of those costs,” Ms. Bartlett said.

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