Medical marijuana is gaining traction in the U.S. as a treatment solution for a variety of illnesses and conditions. To date, there are 23 US states (plus D.C.) that have passed laws allowing the use of medical marijuana. In addition, there are three states that have legalized recreational use of marijuana.  This changing regulatory stance undoubtedly poses a challenge amongst employers who have active policies prohibiting drug use in the workplace

Companies are beginning to fear what the new medical marijuana laws may mean to their “no tolerance drug policy” and how it may affect employees and customers. There is a strong belief that changing company policy to apply the new legal standing for the use of marijuana in the workplace may cause an increase in accident frequency, among other things. So what would happen if a staff member has an accident at work while under the influence of marijuana? How could this affect a workers’ compensation claim?

Use of recreational and medical marijuana is a developing social issue which is why there is limited legislative or legal direction on how companies should address its use by their staff. Up to now, most employers have strict guidelines on misuse of any prescription or illicit drugs, but now they are forced to adapt and figure out:

• An appropriate level of discipline if a staff member tests positive for marijuana
• Whether or not employees are using marijuana during work hours in addition to after hours
• What to do if the company operates out of multiple states where different local law on marijuana use will need to be addressed
• How to approach accidents that happen at work while an employee is under the influence of marijuana

In June 2015, the Colorado Supreme Court ruled in a case (Coats vs. DISH Network LLC) that a Colorado employee who used medical marijuana could not be protected by Colorado’s Lawful Off-Duty Activities law because the use of the drug is illegal under federal regulations. On the federal level, it is still considered a controlled substance.

In this case, Brandon Coats who is a quadriplegic was terminated from his job as a customer service representative because he failed the company’s zero tolerance drug policy. Part of Coats pain management treatment for his condition consisted of a prescription for medical marijuana.

The Colorado Court still ruled that an employer can fire a worker if the worker violates the drug policy despite a possible any medical condition. As medical marijuana becomes more widely used, it is expected that similar cases will arise throughout the country.

Besides the fact that 23 states have approved the use of medical marijuana, most companies are still uncomfortable with their employees using marijuana during work hours. A survey conducted in October 2015 demonstrated that a vast majority of small businesses still did not allow the use of the drug in the workplace.  More specifically:

• 62 percent of businesses prohibited recreational and medical use at work
• 19 percent did permit medical marijuana use at work with prescription proof from a doctor
• 17 percent did not yet have a policy in place allowing or disallowing use of marijuana at work

Remarkably, 74 percent of these small businesses did not require drug testing. If accident frequency increases due to the use of medical marijuana use in the workplace, it will not be a shock to see small businesses begin to enforce drug testing to prevent workplace-related injuries.

There’s no doubt that with time the marijuana issue will pose a challenge to many employers. Your company will need to determine the proper approach to marijuana usage among staff members while balancing federal law, state law and the impact on insurance policies and workers’ compensation claims..