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Flurry of marijuana bills could add complexity for comp, employers

Flurry of marijuana bills could add complexity for comp, employers

Aiming to tackle the contradictory intersection between federal and state law, states in 2020 will continue to grapple with managing legalized medicinal and recreational marijuana in relation to workers compensation and workplace safety, experts say.

Even though some lawmakers in the nation’s capital seek to ease prohibition on marijuana use, observers don’t see the federal ban on pot use being lifted anytime soon.

“There’s going to be a dissonance between state rights and the federal role for the foreseeable future,” said Mark Pew, Atlanta-based senior vice president of product development and marketing for pharmacy benefits manager Preferred Medical, who has been tracking marijuana’s emergence in comp circles over the past several years. “Because this year is an election year … I don’t see 2020 as a year where changes will be made at the federal level.”

Under the Controlled Substance Act, marijuana is classified at the federal level as a schedule I drug with no medicinal value, similar to cocaine and heroin, but 33 states and Washington D.C. have legalized marijuana for medicinal purposes and 11 states and Washington D.C. have legalized its recreational use, too.

The health subcommittee of the U.S. House of Representatives’ Committee on Energy and Commerce held a legislative hearing on Jan. 15 to help create a plan to legalize marijuana at the federal level and other reforms intended to facilitate the study of medical cannabis.

The hearing didn’t spur confidence among proponents for legal marijuana.

“The federal government has dragged their feet on this for years and there is no indication that they won’t continue to drag their feet,” said Paul Armentano, Vallejo, California-based deputy director of the Washington, D.C.-based National Organization for the Reform of Marijuana Laws Foundation, which advocates for the decriminalization of OK marijuana at state and federal levels. “I would dare say that it is an untenable situation to have these inconsistencies at the state level and the federal level.”

Nevertheless, states continue to move forward with legislation legalizing cannabis use and courts are applying the state laws in their rulings.

For example, on Jan. 13 an appeals court in New Jersey ruled that a construction company’s reimbursement for medical marijuana for one of its injured workers is not in violation of federal law that prohibits marijuana as a controlled substance, arguing that the federal government is not enforcing its marijuana law. On the same day, lawmakers in New Jersey introduced A.B. 1708, which would require that workers compensation insurers pay for medical marijuana for injured workers.

Also on Jan. 13, lawmakers in Colorado introduced H.B. 1089, which would clarify that an employer cannot fire a person who uses marijuana while not at work, aiming to treat off-duty marijuana use the same as alcohol use.

On Jan. 15, lawmakers in West Virginia filed H.B. 4186, which would amend state law to remove marijuana as a tested substance from the screening requirements of the West Virginia Alcohol and Drug-Free Workplace Act. And on Jan. 20, lawmakers in Washington filed H.B. 2740, which would make it unlawful for an employer to refuse to hire prospective employees who legally use marijuana and test positive in a drug screen. The bill does carve out exceptions for workers in safety sensitive positions or workplaces that receive federal funding or fall under federal jurisdiction.

States rush to push reforms remains a cause for concern in the comp and workplace safety space, according to experts.

“It’s creating a lot of gray area,” said Brian Allen, Salt Lake City-based vice president of governmental affairs, pharmacy solutions for Mitchell International Inc. “Legislatures are … trying to figure out what is the right balance, but the laws are often subjected to interpretation by the courts,” he said. “There is a lot of challenge there, and it’s a new body of law we haven’t had to deal with before.”

Angela Childers contributed to this report.