Will Marijuana Legalization Hurt Workers Comp Safety Programs?

As marijuana legalization sweeps the nation, employers need to address how increased marijuana use may affect their workers compensation safety programs.
ASHLAND, Ore. - Oct. 30, 2014 - PRLog -- Marijuana legalization is on ballot measures in the upcoming midterm elections in Alaska, Oregon, Washington, DC, and Florida.  Plus twenty-two states already allow the medical use of marijuana. Colorado and Washington have already legalized its recreational use and possession. Will all these changes send employers’ zero-tolerance policies up in smoke?

Jeff Burgess, Program Coordinator, Technical Assistance for Employers in Oregon’s Bureau of Labor and Industries, says in a recent report, “The answer is no.” State laws “generally provide immunity from state and local criminal prosecution under certain circumstances. They do not provide employment protection, however.”

Generally, employers can prohibit on-duty employees from using marijuana medicinally. But refusing to hire or otherwise discriminating against those who use medical marijuana on their own time remains a gray area in most states. Some states, however, such as Connecticut and Arizona, have passed laws specifically protecting medical marijuana users from employment discrimination.

In some states, workers’ compensation insurers will discount an employer’s premiums if it institutes a drug-free workplace policy and program.

Employers can legally test for drugs at different points in the employment process — during the application process, during employment at random or regular intervals, or after an accident. It can be done for some or all workers — for example, for safety-sensitive positions only, or for all workers. Because drug testing costs money, employers may choose not to use this method for assessment. However, many workers’ compensation experts recommend testing all employees after an accident or near-miss to rule out the use of drugs.

Employers who decide to implement a drug-testing program should remember that laws designed to protect workers’ civil rights could affect workplace drug policies. These laws include the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) of 1990. These statutes limit how far an employer can go in investigating and disciplining employee drug use.

Federal law still classifies marijuana as a Schedule I illegal drug. In an informal opinion, the Equal Employment Opportunity Commission said “…the ADA does not protect individuals who are currently engaging in the illegal use of drugs…” However, the EEOC considers past drug addiction a protected disability, so employers should avoid questions about past addiction to illegal drugs or participation in a rehabilitation program.

Many states and U.S. territories have their own laws and regulations dictating when and how workplace drug testing should be carried out. Some also require state and local contractors to develop drug-free workplace policies similar to those under the federal Drug-Free Workplace Act. No one set of rules and regulations applies throughout the country. Some states, such as Louisiana, allow drug testing in virtually every type of business and in both the public and private sectors. Others, such as Maine, restrict who can be tested, how they can be tested, and what kinds of rehabilitation and disciplinary options can result from a positive test.

To avoid legal problems with their drug testing policy, employers can take several simple steps, such as involving workers in developing and implementing a drug-free workplace policy from the beginning.  To view all ten steps, please read the entire article at http://theinsurance411.com/business/marijuana-workers-compensation/

TheInsurance411.com is a resource for consumers and small businesses looking for easy-to-understand, unbiased, accurate and authoritative information about insurance and ways to handle risk. TheInsurance411.com does not sell insurance products, nor is it affiliated with any insurance providers.

James Whitaker

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