Get Ready Workers’ Comp, Cannabis Legalization Is Growing. What Employers Can Do to Prepare

Employers need to prepare for a wave of new laws legalizing cannabis.
By: | October 26, 2021

It’s no secret that cultural attitudes towards cannabis are shifting in America.

Only 8% of adults believe that cannabis should be completely illegal, a pew research center poll from April of 2021 found. The majority of adults — a whooping 60% — believe that marijuana should be legal for both medical and recreational use.

It’s no surprise than that more states and even the federal government are considering legalizing the drug.

With legalization becoming ever-more popular, many employers are concerned about the workforce safety implications of the drug and how it will affect workers’ compensation treatment options.

During a session at National Comp, the National Workers’ Compensation and Disability Conference, attorney Crystal Stevens McElrath, partner at Swift Currie McGhee & Hiers LLP, detailed what laws are on the books and what employers need to do to comply with ever-shifting state regulations while ensuring the safety of their workforces.

“There are a lot of perfectly aligned cultural and socio-economic factors [contributing to marijuana legalization],” Stevens McElrath said.

Cannabis Legalization Laws as of This Minute

Only 12 states have no laws legalizing marijuana, Stevens McElrath reported during the session. All the rest have a mix of laws legalizing medical only use, recreational use or both.

Medical marijuana is legal in 36 states. Recreational cannabis use is legal in 19 states and Washington D.C. Cannabis use is decriminalized in another 26 states.

In addition to legalization, more states are passing laws dictating how employers should respond to cannabis use, including banning pre-employment testing and whether or not the drug is compensable under workers’ compensation and private health insurance policies.

In 2019, New York and Nevada banned pre-employment drug testing. New York’s law made exemptions for people who supervise or care for children, medical patients or vulnerable persons, but Nevada’s applied to all workers.

In Arizona, private insurers and workers’ compensation payers don’t have to pay for medical marijuana. In New Jersey, however, the drug is compensable.

“There are legitimate concerns for employers and insurers, with the idea of legalizing marijuana,” Stevens McElrath said.

Employers: How You Can Prepare

In the wake of laws banning pre-employment drug testing, Stevens McElrath  offered a few simple tips, with regards to testing and keeping your workforce safe.

1) Don’t Ask: According to Stevens McElrath, employers should make sure that pre-employment testing for marijuana use is both legal and necessary. This advice is in line with both state laws and OSHA recommendations.

2) Identify Safety Sensitive Positions: To determine whether pre-employment drug testing is necessary, understand what positions are safety sensitive.

3) Revise policies to keep up with ever-shifting marijuana laws and clearly communicate those rules to your workforce.

4) Document Signs of Impairment: If a manager suspects an employee is using marijuana while at work or is impaired while working, document any signs before an accident occurs. &

Courtney DuChene is an associate editor at Risk & Insurance. She can be reached at [email protected]

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