Employers urged to stay abreast of medical marijuana advances

With medical marijuana now legal in 28 states after the November election, employers are being urged to review, update and enforce their anti-drug policies, and to be careful not to discriminate against employees who use it when it comes to workers compensation.

An analysis released Thursday by Marsh L.L.C.’s Workers’ Compensation Center of Excellence and the broker’s employment practices liability group paints an ambiguous picture for companies that want to comply with both federal and state laws.

The drug is still illegal at the federal level, categorized as a Schedule I drug alongside cocaine and other controlled substances. It is also, as the report points out, the “most commonly detected illicit drug in workplace drug testing.”

“Employers … must balance new laws not only against federal requirements, but against employees’ rights and the imperative to maintain safe and drug-free workplaces,” the report states.

The report raised the concern that employers could be liable for violating the Americans with Disabilities Act or federal or state anti-discrimination laws by inquiring whether an employee has a prescription for medical marijuana.

“Unless job-related or legally necessary, employers should avoid asking job applicants and employees about their prescription drug use,” the report states.

As for detection in the course of investigating a workers comp claim, the report finds that courts have generally sided with employers on matters related to medical marijuana when the substance is discovered to have been a direct factor in a workplace injury. Yet, the reverse is often true when another factor, such as slippery floor or a falling object, is found to be the contributing factor.

Still, an injured employee who tests positive for drug use can be fired for violating an employer’s drug-free workplace policy — but the workers comp claim can still be deemed valid, according to the report.

“The trend toward legalization of marijuana at the state level is well underway, although the ultimate impact on workforce risk issues remains uncertain,” the report states. “For now, employers can feel confident about their ability to enforce anti-drug policies … Employers should work with their insurance and legal advisers to stay abreast of legislation and court decisions governing marijuana use and the potential impact on such risk management areas as workers compensation, workplace safety, and employment practices liability.”