The Other 2020 Election Story: Which States Legalized Marijuana and How It Could Affect Workers’ Comp

As people patiently waited for the presidential election results the week of November 3, another wave quietly swept across the country: the green wave.

In the 2020 election, a large number of states passed new laws through ballot measures legalizing medicinal and recreational marijuana, bringing the total number of states where marijuana is legalized in some form to 36. 

The drug remains illegal in Idaho, Wyoming, Kansas, Nebraska, Texas, Wisconsin, Indiana, Kentucky, Tennessee, Virginia, North Carolina, South Carolina, Alabama and Georgia, though in Nebraska and North Carolina it is decriminalized statewide.  

The legalization of medicinal marijuana has long been a trend to watch in the workers’ compensation industry. 

With new laws on the books, payers and providers will need to pay attention to make sure that their workers’ comp programs remain in compliance.

New Marijuana Laws State-By-State

1) South Dakota: On Election Day 2020, South Dakota became the first state to pass legal and medical marijuana in the same go. 

Voters passed two separate measures, Measure 26 and Amendment A. Measure 26 establishes a medical cannabis program for the state and sets up a registration system for people with qualifying conditions. Amendment A legalizes cannabis for adults aged 21 and older and it requires state legislators to adopt medical cannabis and hemp laws.

Measure 26 allows those with debilitating medical conditions to possess no more than three ounces of marijuana. It defines debilitating medical conditions as:

“A chronic or debilitating disease or medical condition or it’s treatment that produces one or more of the following: cachexia or wasting syndrome; severe, debilitating pain; severe nausea; seizures; or severe persistent muscle spasms, including those characteristic of multiple sclerosis.” 

The state’s department of health can also add qualifying conditions. 

2) Mississippi: Mississippi had two dueling medical marijuana measures on the ballot this year. 

Initiative 65, the prevailing measure, allows physicians to recommend marijuana as a treatment for 22 qualifying conditions including chronic pain which is common in workers’ comp. 

It also requires the state department of health to set up a medical marijuana program for the state.  

Initiative 65A, which was rejected, would have limited the use of medical marijuana to the terminally ill and it would have allowed the legislature to set up the regulatory framework.    

Workers’ comp insurers in Mississippi shouldn’t worry too much about whether or not they need to start paying for medicinal marijuana, however. Under this measure, the state health department has until mid-2021 to create the program.  

3) Montana: Montana passed recreational marijuana use with two ballot initiatives.

The first, CI-118, is a constitutional amendment that allows state legislatures or ballot measures set a legal age for marijuana use. 

The second, I-190, is a statutory measure that allows for marijuana possession and use among adults age 21 and older and it puts the department of revenue in charge of setting up and regulating a commercial system for growing and selling the drug. 

Local governments can still ban cannabis businesses within their cities and the initiative puts a 20 percent tax on cannabis sales.  

4) Arizona: Arizona’s Proposition 207 legalized recreational marijuana for adults over 21. It also enacted a tax on marijuana sales and requires the state’s department of health and human services to develop regulations for the marijuana industry. 

Additionally, the proposition will set up a pathway to strike prior convictions for marijuana from criminal records.     

5) New Jersey: Medical marijuana use has long been legal in New Jersey. This year’s Public Question No. 1 put recreational marijuana on the ballot and it passed overwhelmingly. 

The measure added an amendment to the state’s constitution that legalizes marijuana use for adults over the age of 21 and it legalizes the cultivation and sale of retail cannabis businesses. 

It did not provide possession limits, home-grow rules or retail regulations. These will be up to the state legislature.   

Potential Effects On Workers’ Comp  

Medical marijuana measures can have a variety of implications for workers’ comp.

Given the drug’s federal illegality, few FDA-approved prescription drugs containing marijuana or cannabis exist on the market. Consequently, doctors, who are prohibited from prescribing non-FDA approved drugs, can’t prescribe medical marijuana or recommended dosage.  They can only suggest that the treatment may be effective.

Some states have regulations around these restrictions. New Jersey, for example, allows physicians to become certified by the state to prescribe medical marijuana.

As state boards of health and legislatures more clearly define the regulations around these new marijuana laws, payers will need to take note so that they can make sure workers’ comp programs comply.  

Even though they don’t directly address the workplace, the recreational marijuana measures passed this year shouldn’t be ignored by the workers’ comp industry. 

For employers, worker safety and workers’ comp professionals, it’s worth keeping track of which states pass recreational marijuana measures as positioning the drug as a purely recreational substance can prevent providers from considering it as a potential treatment. 

Legal recreational marijuana use should be treated in much the same way that employers treat alcohol use. It’s not appropriate during work hours as it can leave employees impaired and unable to do their jobs safely. &