The Cannabis Legalization Tide Is Rising. Here’s How It Will Affect Workers’ Comp

A myriad of state and local laws and abrupt shifts from one administration to the next are creating challenges for employers trying to stay on top of it all.
By: | October 14, 2021

Employers and workers’ comp organizations are working hard to stay abreast of, understand, and prepare for new laws legalizing recreational and/or medical cannabis. But it’s not an easy task, by any stretch.

And as if keeping up with state and local laws wasn’t tricky enough, new rumblings suggest that federal legalization could happen as early as 2022.

Risk & Insurance® recently spoke with Crystal Stevens McElrath, a partner in the Atlanta office of Swift Currie McGhee & Hiers, about the ever-changing landscape of cannabis legalization.

McElrath has been watching closely as laws legalizing cannabis in some form have been established in 44 states and continue to spur questions and concerns from employers.

There is a “snowballing trend of states very quickly passing laws or decriminalizing different types of marijuana use,” she said. “It’s something — in the workers’ compensation realm and the HR realm — that really gives employers a lot of anxiety and concern.”

Employers must have a keen focus “on how these trends can affect claims, safety and risk management programs, human resources and personnel decisions — what we need to know and what’s ahead of us,” she said.

Cannabis legalization has not followed a straight line, which is one reason why employers may find it challenging to keep up with the latest developments.

“A lot of the momentum in these laws really has flip-flopped with the [presidential] administration in control,” she said. “What we saw in 2016 was a loss of momentum and even [a potential federal law] abandoned in 2017 when the Trump administration took over.”

That, said McElrath, is when “a lot of states decided to kind of take matters in their own hands. Now here we are in 2021, with another [new] administration and there’s more talk about legalization at the federal level again.

“It’s interesting to me that it isn’t just one smooth trajectory that’s unfolding … to see how states have taken up the momentum and how this path has been a winding one. But it seems like it may be getting toward to its destination.”

Crystal Stevens McElrath,, partner, Swift Currie McGhee & Hiers LLP

The results of the November election could mean employers across the country, even those in states with cannabis laws already on the books, will have to address the implications of federal legalization.

“Legalization is a trend that’s growing and increasing and it’s not going to stop,” McElrath said. “If you’re not in a state that has already legalized cannabis then you might be in a state that is going to do so soon. You can get ahead of what’s coming.”

The potential for federal legalization is on the horizon and employers need to be prepared.

“There has been a lot of push for that, particularly in the House of Representatives,” McElrath said. “Should the November 2021 election give Democrats more control of the Senate, it might be something you could see go to President Biden’s desk in 2022.

“Federal legalization would open the door and impact every single state, even states that have already passed a state law.”

McElrath practices workers’ compensation defense as well as employment law defense and counseling, and leads the firm’s COVID-19 Task Force, with a specialty in disability and leave laws. She’s also has published dozens of articles, and regularly advises, trains and defends clients in matters relating to the intersection of workers’ compensation and employment.

But her focus on the cannabis legalization began in 2016 when Occupational Safety and Health Administration issued guidance about drug testing.

“That’s really where this interest came from — from really helping my employers understand that 2016 guidance from OSHA about drug testing post-injury and what the implications were of that, both from an employment and workers’ compensation perspective,” she said.

Following legislation as it develops and understanding and conveying to clients how it will affect them is one aspect of her job that McElrath enjoys.

“I enjoy keeping up with the laws,” she said. “I am a little bit of a nerd and since the [interest in a cannabis] law has been flip-flopping with each administration, it never becomes stagnant.”

“The laws themselves are meaty,” she added. “There is a lot to interpret, digest and understand. The fact that I am able to help employers understand and make their own business decisions, with an understanding of the status of laws that continue to flip flop and evolve, is very rewarding.”

McElrath works closely with clients on these types of legislative shifts, sometimes even as laws are just being announced, such as during the early days of the COVID-19 pandemic.

“Several of my clients have my cell phone number so sometimes we’d be watching the President’s news conference together, at the same time, trying to digest what the newest leave was going to be, or what they were saying about COVID-19 relief,” she said. “So, some of it is in real time.”

McElrath will have even more to offer on the topic during her National Comp presentation this October “What to Know, What to Do, Before the Cannabis Legalization Tide Sneaks Up on You.”

The session will take place at 10 a.m. Friday, Oct. 22 at National Comp 2021 at Mandalay Bay in Las Vegas. &

National Comp — the National Workers’ Compensation and Disability Conference — is back! We’re planning an in-person show for October, 20-22, 2021 and we’re excited to see everyone while still adhering to all safety protocols set forth by local and national health authorities at the time of the event.  Register today!

This year, we’ll feature seven tracks — from core content on medical and pharmaceutical management, claims and return-to-work, plus new and expanded avenues to explore like risk finance and injury prevention. All of our educational sessions are chosen for their ability to deliver sound takeaways and ideas that attendees can use right now.

In the meantime, National Comp will continue bringing you free virtual, educational content through our digital sessions series and our CompTalks program. Register today to make sure you don’t miss a digital session and check out our on-demand CompTalks library.  Missed a session? Watch it here on-demand.

Annemarie Mannion is a freelance writer. She can be reached at [email protected].

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