RIMS 2015

Employers Navigate Risks of Unconventional Medicine

As treatments including medical marijuana gain traction in the workers’ comp space, employers need new strategies to manage the risks and contain costs.
By: | April 13, 2015

Nearly two years ago, a demolition project in downtown Philadelphia ended in tragedy when a heavy machine operator accidentally caused the collapse of an adjoining Salvation Army store, killing six people and injuring at least 14 others.

The excavator operator on the project was high as a kite, according to allegations.

Fear of that kind of tragedy has been gnawing at risk managers as medical marijuana legalization has spread in states across the country.

“The deadly impact is the same, no matter what the industry is,” said Sandy Little, risk manager for the Bar-S Food Company, at a presentation at RIMS 2015 in New Orleans.

Even in workplaces with a low risk of fatalities, mistakes made by impaired workers can cost employers dearly and even jeopardize reputations.

Little, along with attorney Bob Balkenbush of Thorndal Armstrong Delk Balkenbush & Eisinger, stressed that the current federal law remains clear, and employers should look at it as a resource.

Even in cities or states where medical or recreational marijuana is legal, the substance is still a Schedule I illegal drug at the federal level, and employers have no obligation to bend on policies prohibiting its use.

So far, said Balkenbush, most challenges brought by medical marijuana users have been shot down in the courts.

In James v. City of Costa Mesa (2012), a group of disabled individuals filed an ADA claim against the city for trying to shut down a collective that legally dispensed medical marijuana. The court ruled that under federal law, the group was illegally using marijuana; therefore the claim against the federal ADA was invalid.

In Ross v. RagingWire Telecommunications (2008), an employee was fired after his pre-employment drug test came back positive for marijuana. He sued the employer, claiming the company failed to accommodate him under the state’s Compassionate Use Act.

The court ruled in favor of the employer, indicating that the Compassionate Use Act was not intended to interfere with the right of employers to require pre-employment drug testing or to take drug use into consideration when making employment decisions.

Balkenbush cited several other cases where courts came down firmly on the side of employers, including cases where employers denied unemployment benefits to terminated marijuana users.

Most states, he said, are not allowing unemployment benefits for employees fired for violation of zero tolerance policies.

“Employers, for the time being, are protected,” he said.

Regardless of how many states eventually decriminalize marijuana, the law does not say that employers cannot have zero tolerance policies or fire individuals who test positive.

Of course, there are exceptions, Balkenbush and Little said. In a recent New Mexico case, the court required an employer to cover the cost of medical marijuana for the treatment of a work-related injury.

There’s also a possibility that the federal law could change within the next few years, Balkenbush cautioned, depending upon changes in the political climate.

For the time being, a well-written drug policy, frequently updated and consistently applied is key for all employers, said presenters. But it’s important to keep in mind that drug testing doesn’t always cast a wide enough net to detect whether an employee is a problem user.

It’s up to managers to be observant, Little said, and to pay attention to employees’ interactions with co-workers and customers.

She also stressed the importance of keeping the lines of communication open with employees regarding such substances. Make sure they’re aware of resources available to help, such as an employee assistance program.

Michelle Kerr is Workers' Compensation Editor and National Conference Chair for Risk & Insurance. She can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance