Part 3: Will legalization of marijuana create a new impaired workforce and affect drug-free workplaces?

This is the third in a multi-part series on the effects of the ongoing legalization of marijuana in the worker’s compensation insurance ecosystem. In case you missed them here’s part one and part two. This series is being ran in preparation for a panel on “Legalization of Marijuana and the Impaired Workforce” that the author is moderating at the AmComp Fall Conference in NYC on November 8, 2018. Opinions expressed are those of the author and are not necessarily held by the author’s employer or AmComp. Insurance Nerds readers can save $100 on registering for AmComp with discount code AMCOMPNERDS.

Among the biggest concerns for employers (and most widely discussed) are workplace policies on drug use.  Though states have legalized marijuana for either medical and/or recreational use, federal policies remain intact and employers’ rights to maintain a drug-free workplace has not changed.  However, in states with access to marijuana, use has increased. Some employers are scrambling to find qualified candidates who test clean. A legal debate percolating is centered on employees’ state sanctioned, legal use of marijuana and employers’ rights to maintain a drug-free workplace.  A key question raised is whether an employee’s legal marijuana use outside of work hours is protected. Secondly, did the use lead to impairment that was ultimately the proximate or contributing cause, to an employee’s workplace injury? Complicating matters is the difficulty in drug screening which has been void of any significant advancements, and still uses antiquated measures of impairment.  

A recent workers’ compensation claim in Colorado highlights some of the potential effects of legalized drug use, strict impairment standards under workers’ compensation, and imperfect drug testing techniques and measures .  A ski resort employee who was killed on the job was found to have THC in his system by the coroner. The insurer argued that the substance contributed to his injury and ultimately prevailed in reducing the widow’s benefits by fifty percent.  Colorado’s statutes are quite clear that insurers can reduce benefits if a controlled substance is found in the claimant’s system. Colorado has adopted a presumption of pot “impairment” at five nanograms of THC per milliliter of blood. Plaintiff’s arguments generally reflect the notion that drug testing for marijuana is difficult and discovery of THC in the body may not necessarily coincide with level of impairment at the time of injury.  Some studies have validated this assumption. A fair and equitable system should account for worker intoxication, but testing and proper thresholds should be set and understood by all stakeholders.

 

While current testing may be imperfect, it may be adequate for existing laws.  However, states with marijuana need to be able to distinguish between recent drug use and present impairment.  The employment community collectively agree marijuana testing needs enhancement. Alcohol can be detected in one’s system 12-24 hours after use in a blood screen or 6-80 hours in a urine screen; the current collection methods are able to clearly establish alcohol content at the time of testing which can be measured against pre-established intoxication levels.  In comparison, marijuana can stay in one’s system for weeks or months. Given this lengthy process, users can be found to have trace amounts of THC in their system without being intoxicated. Current testing thresholds often use diminutive levels to determine impairment — as marginal as 5 nanograms of THC per milliliter of blood. This is relevant because of the reduction or elimination of benefits based upon an employee’s intoxication.

Another decision for employers is how to address transitional return-to-work programs for those injured workers using medicinal marijuana as they cope with pain or other conditions post-injury.  Should an injured worker who took a Percocet yesterday for pain be treated the same as an injured worker who legally smoked marijuana the day earlier and neither are intoxicated the following day for work?  If medical marijuana is permissible, though reserved for more severe diagnoses, the frequency of these events may be subject to job duties, work restrictions and permanent disability classifications. While the frequency for employers with clear drug-free workplace policies this issue may be moot.  But for those without, either passively or purposefully, employers will need to navigate potential discrimination issues if employees are treated differently because of the way they choose to medicate. Employees can often return to work in a modified duty capacity while still taking prescribed medication that could cause some impairment.  As federal law still prohibits all use, the Americans with Disabilities Act (ADA) will not recognize employee medicinal marijuana rights but state statutes may not be as clear. Organizations are updating the language in drug-free workplace policies to reflect employees’ responsibility related to potential impairment from a prescription drug.  They cite that the nonmedical use of prescription drugs is not acceptable and may be treated as illegal drug abuse. Whether state legalized medical marijuana meets the definition of prescription drug must be unambiguous.

A final topic, though a bit more controversial, is the potential shift by employers towards waiving drug screens and abolishing a drug-free workplace.  Bloomberg reported earlier this year that a tightening job market had employers dropping their pre-employment drug screens. They cited evidence from multiple employers such as a Nevada based healthcare company with 6000 employees and the nation’s largest auto dealer.  In Colorado, a state with recreationally approved marijuana use, a survey found the number of companies testing for marijuana dropped from 77 percent last year to 66 percent. The current trend has been more focused on job sectors such as finance and technology where jobs are less hazardous.  Employees working specific hazard classes, or working for employers with government contracts, will likely not see any changes to the current zero tolerance policies in place. Still, there are concerns that employees, with access to legal marijuana, may begin to show up to work intoxicated. For employers who require employees to drive or operate heavy machinery, this may be a bigger concern.  Employers’ policies for a drug-free workplace will continue to evolve and it will be imperative that all parties understand laws and implications.

 

Brian Reardon is a Board Member of AmComp and AVP, WC Claims for Maiden Reinsurance. He will be moderating the upcoming panel session on “Legalization of Marijuana and the Impaired Workforce” at the AmComp Fall Conference in NYC on November 8, 2018. Opinions expressed are those of the author and are not necessarily held by the author’s employer or AmComp. Insurance Nerds readers can save $100 on registering for AmComp with discount code AMCOMPNERDS.

About Brian Reardon MBA,ARM,AIS

Brian Reardon, AVP of Worker's Compensation Claims at Maiden Holdings in Bermuda and NYC. He has over 14 years of P&C experience working on all sides of the industry including carrier, reinsurer, TPA, broker and employer. He holds multiple industry designations and a MBA in Insurance and Risk Management from St. John's University. He's a Board Member at AmComp (American Society of Workers Comp Professionals) and a Fellow at the Claims & Litigation Management Alliance.

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