Marijuana Legalization and Workers Comp Risk

Brian Allen


August 1, 2022

Marijuana Legalization and Workers Comp

On May 25, Rhode Island became the 19th U.S. state to legalize recreational marijuana. Earlier this year, Mississippi passed legislation to allow for medical marijuana use, bringing the total number of states that have authorized ­medical cannabis to 37. The continued push to legalize marijuana is no surprise. As of December 2021, states that have legalized marijuana have collected over $10 billion in related taxes since 2014, according to the publication Marijuana Moment. And while much of the economy suffered from COVID-19 in 2020, Forbes reported that cannabis sales hit a record $17.5 billion for the year, a 46% increase over 2019. 

Other states are considering legalization as well. For example, lawmakers in Pennsylvania are pushing to legalize recreational marijuana to prevent tax revenue from leaking over its borders into other states that have already legalized. Additionally, Ohio, Arkansas, Florida, Nebraska, Idaho, Missouri, Oklahoma, South Dakota and North Dakota are debating ballot initiatives to legalize medical and recreational marijuana. Congress is also considering several pieces of legislation to remove marijuana from the Controlled Substances Act and allow states to regulate use within their borders. 

As more jurisdictions consider legalizing recreational or medical marijuana use, employers, regulators and other stakeholders are once again contemplating the impact marijuana might have in the workplace and on workers compensation claims.  

Determining the Effects of Marijuana

Studies on the impact of marijuana in the workplace are limited and their findings are conflicting. Research from the National Institute on Drug Abuse found 55% more industrial accidents, 85% more injuries, and 75% more absenteeism among employees who tested positive for marijuana compared to those who tested negative. However, in its “Systematic Review of Cannabis Use and Risk of Occupational Injury,” the National Institutes of Health reported, “The current body of evidence does not provide sufficient evidence to support the position that cannabis users are at increased risk of occupational injury.” Similarly, in a 2017 report, the National Academies of Science, Engineering and Medicine found “no or insufficient evidence to support or refute a statistical association between cannabis use and occupational accidents or injuries.” Experts all seem to agree more research is needed.  

Measuring impairment presents another challenge for employers. Researchers have been hard at work trying to develop some type of impairment field test, but no workable solution has been devised thus far. Blood alcohol content is a long-established gauge for alcohol impairment levels, but there is no comparable hard standard for measuring impairment based on tetrahydrocannabinol (THC) levels in biofluids. THC, the main psychoactive component in marijuana, is metabolized differently by different individuals and can remain in biofluids for days or even weeks, long after the effects of any “high” have dissipated. Nevertheless, most state laws and guidance from federal agencies indicate that there is zero tolerance for the presence of THC in biofluids for workers in certain sensitive jobs where public safety could be impacted, such as with truck drivers or pilots. 

Such a prohibition is supported by research. The AAA Foundation for Traffic Safety published a research brief on the impact of marijuana legalization on fatal traffic accidents in the state of Washington. The research looked at fatal accidents from 2008 through 2017 and found the number of drivers with detectable THC involved in fatal accidents doubled after legalization. A systemic review by the National Academies of Science, Engineering and Medicine found “there is substantial evidence of a statistical association between cannabis use and increased risk of motor vehicle accidents.” 

To help employers protect against the risks of employees driving while impaired by marijuana, NIOSH has a list of best practices that include: a zero-tolerance policy for marijuana; comprehensive drug testing; access to support for employees with a drug problem; educating employees, supervisors and managers on the effects of marijuana on driving and how to spot impairment; and developing policies that follow the laws in the states where employees might work.

Employers developing policies around marijuana use have to stay vigilant amid actively changing laws, rules and court decisions. For example, Utah passed S.B. 121 in March 2020, which specifically told private employers they were not required to accommodate the use of medical marijuana, while also telling public employers that they were required to accommodate medical marijuana. Then, S.B. 46 passed in the 2022 General Session of the Utah Legislature, requiring both public and private employers to treat medical cannabis the same way they would treat any other prescription medication. Such shifts are not uncommon, especially in states where medical or recreational marijuana laws are fairly new. 

Workers Comp Questions

For workers compensation claims administrators, medical marijuana poses a challenge because many of the state laws detail specific conditions for when medical marijuana can be recommended, but none of the laws effectively address issues of medical necessity or efficacy.  These issues are even more complicated when the state law allows for medical marijuana for any condition deemed necessary by the treating physician. 

Currently, there are no concrete standards for THC levels in marijuana from state to state, or sometimes even from dispensary to dispensary. Few physicians have received specific training on medical marijuana. From a practical standpoint, most claims administrators will use patient-reported efficacy as the basis for judgments on medical marijuana. That makes it tough for those evaluating claims to develop a consistent baseline to compare treatment outcomes. To aid in tackling these challenges in the longer-term, the federal government made more marijuana available for research in May 2021 by expanding the sources from which researchers could obtain products for testing.  

Risk Management Best Practices

For risk managers and workers compensation stakeholders, there are a lot of moving parts to consider, made ever more hazy by conflicting court decisions, lack of consistency in state laws, and the lack of clear science on impairment and impacts on workplace safety. 

To best manage medical marijuana in the workers compensation system, claims managers must ensure they are familiar with the medical marijuana laws in their state. Most states have statutorily defined the conditions for which medical marijuana can be recommended or used. Knowing what those conditions are can help the claims manager understand if medical marijuana is appropriate for the claim based on statutory parameters.  

It is also important for claims managers to stay current on the science. Over the next few years, researchers are expected to begin releasing preliminary results that should help provide more informed guidance to physicians, injured workers and claims managers. Knowing the latest research can help workers compensation professionals spot situations that may not conform with the latest recommendations. Since rulings can have an impact on how medical marijuana is reimbursed in workers compensation claims, it is also important to watch the courts for related developments.

To mitigate impacts of marijuana, risk managers need to develop clear guidelines around marijuana use in their workplace drug polices. In states where recreational marijuana is legal, screening for THC may not be practical or enforceable. Risk managers need to understand state laws regarding accommodating use of medical marijuana and whether or not the state law offers protection for employees who use marijuana recreationally.  

Risk managers should also train managers and supervisors on signs of marijuana impairment to help keep the workplace safe. Impairment rules for marijuana should follow impairment rules for alcohol or other substances to maintain consistency in application. Educating employees on how marijuana can impact job performance and safety can also help reduce potential incidents and encourage voluntary compliance.  

Brian Allen is vice president of government affairs for the pharmacy solutions team at Mitchell.