Employers are aware that the use of marijuana is now legal in a multitude of states. 22 states and the District of Columbia have legalized marijuana for medical purposes and 2 states, Colorado and Washington, legalized marijuana for recreational use. The laws in these states grant individuals suffering from various ailments the right to seek relief through the use of marijuana. For the most part these statutes decriminalize the use of marijuana for authorized users and create some sort of patient registry. Issues remain with regard to employment and whether an employer can decide to hire or fire based on legal marijuana use. Rhode Island and Arizona laws have language that prohibits an employer from penalizing or refusing to hire a person because of medical marijuana use. Additionally, some of the states have added sections specifically prohibiting discrimination.
A. When Hiring
Many issues can and will result for employers from the legalization of medical and recreational marijuana. Under many of the state statutes employees are seemingly afforded protections from discrimination for legal use of medical marijuana; however, as we see from the cases that have come down thus far, that does not yet seem to be the case. As the laws progress and with federal government beginning to back off from prosecutions, employers will be faced with addressing issues of medical marijuana use under the state statutes with little fall back on the federal law.
B. Safety and the Impaired Employee
One of the biggest concerns for employers with regard to medical marijuana is safety. Will an employee who is being prescribed medical marijuana be a risk to themselves and others—will he or she be a liability? If an injury occurs on the job while an employee is taking medical marijuana, will the injury be compensable under that state’s workers’ compensation statute? If an employee is found to have marijuana in his or her system after an accident causing injury to a member of the public how will the employer’s liability be adjudicated? These are questions the cases have not yet begun to answer.
C. WC Issues and the Unimpaired Employee with THC in their System
Intoxication is a defense to workers’ compensation claims in many states and has been for years. However, unlike alcohol and other drugs, there has yet to be a reliable test to determine intoxication and the level of same when it comes to marijuana. Many states use the blood test when trying to determine if a person is using marijuana. However, these tests are not reliable when it comes to testing for intoxication, as compounds in the drug can remain in a person’s system for weeks after use. A recent Arizona case involving a man convicted of DUI for driving under the influence of marijuana was overturned by the Arizona Supreme Court. See State ex rel. Montgomery v. Harris, 322 P.3d 160 (Ariz. 2014). The man convicted was a regular marijuana user, but denied using on the day of the arrest. He was convicted in the lower court of DUI. Arizona had followed a zero tolerance rule, meaning that any findings of cannabis in a driver’s system meant he failed the test. The problem in this specific case was the defendant’s test came up positive for the inactive metabolite, carboxy-THC, which can stay in a person’s system for up to two weeks. Thus, this metabolite is not evidence of intoxication. The Court held “because the legislature intended to prevent impaired driving, we hold that ‘metabolite’ reference in the law is limited to any of the proscribed substance’s metabolites that are capable of causing impairment.” Therefore, drivers cannot be convicted of the presence of a non-impairing metabolite that reflects prior usage. Also problematic with blood testing is that the psychoactive compound that causes impairment, TCH, can also remain in a person’s system for days after using the drug. Thus, the blood test fails to accurately assess intoxication.
So how does an employer determine if an employee is under the influence of marijuana on the job? If an employer suspects an employee is under the influence due to the employee’s behavior, arrests or other testing maybe appropriate. At this point cognitive testing for impairment may be the most reliable way to determine intoxication for marijuana. A recent study published in Clinical Chemistry, suggests that breath may be a valid way to test for intoxication. They found that THC (active compound) was the major cannabinoid found in the breath samples. None of the samples contained the metabolite or non-psychoactive compound Carboxy-THC. Thus, science has not yet caught up with social policy, but it’s not too far off.
If an employer can accurately determine an employee is under the influence of marijuana and they are in a state where their workers’ compensation statute provides an intoxication defense they can raise it. Professor Larson, Intoxication as a Defense in Workmen's Compensation, 59 Cornell L. Rev. 398 (1974) (hereinafter cited as Larson) provides a good discussion of the law. He points out that there are three basic approaches in states that provide the intoxication defense: Intoxication, Intoxication as the sole cause and Intoxication as a substantial cause.
Simple intoxication states provide that once it is shown the injured worker was intoxicated the defense is established. Other states such as New Jersey require that the intoxication be the sole cause of the injury, making it very difficult to establish this as a defense. The majority of states, however, like California have statutes that require the employer prove that the injury or death was "caused by" or "due to," or "resulting from" intoxication. Thus, requiring not that intoxication is the sole cause, but a substantial factor in the injury. This last category of statutes requires the defense establish what is basically legal causation. So, if there are facts presenting a special source of hazard that was involved in the accident, in addition to the intoxication, courts frequently hold that intoxication is not the proximate cause.
D. Terminating Intoxicated Employees
It is clear from the cases that have been decided that courts are not yet ready to hold employers responsible under these laws for failing to hire or for terminating persons that test positive in states where marijuana is legal for medical purposes. However, state legislatures are working to amend laws to try to protect employees. Ultimately, it has yet to be seen where an employee has been successful in a suit against an employer for action taken as the result of being a legal marijuana user under state law.
E. Paying or Not Paying for Medical Marijuana When Prescribed
Workers’ compensation payers are responsible for paying for treatment deemed medically necessary and related to the injury in question. We are now facing the issue of paying for medical marijuana in workers’ compensation courts throughout the country.
The New Mexico intermediate appellate division recently affirmed the workers’ compensation courts holding requiring the workers’ compensation carrier pay for the injured workers’ medical marijuana. See Vialpando v. Ben’s Auto. Services and Redwood Fire & Casualty, 320 P.3d 492,(N.M. Ct. App. 2014). The employer challenged the ruling, arguing that: (1) it was illegal and unenforceable under federal law and thereby also contrary to public policy; and (2) the Act and its regulations do not recognize reimbursement for medical marijuana. The Court cited the New Mexico Workers’ Compensation statute stating that an employer is required to provide an injured employee “reasonable and necessary health care services from a health care provider.” The Court goes onto refer to recent Federal Department of Justice statements that the Court refers to as “equivocal statements about state laws allowing marijuana use for medical and even recreational purposes… the Department of Justice identified eight areas of enforcement priority and indicated that outside those priorities it would generally defer to state and local authorities.” Thus, the Court sees this as the federal government sending a message that they will not interfere with states laws on medical marijuana.
The employer also argued that the doctor who dispenses the marijuana did not fall under the definition of health care provider, which the Court agreed with. The Court conceded that marijuana is not a prescription drug, but a controlled substance and a drug. It elaborated that “it is not dispensed by a licensed pharmacist or health care provider; it is dispensed by a licensed producer through a program authorized by the Department of Health.” This was sufficient for the Court to determine the medical use of marijuana was proper and required the carrier to pay for it.
While this case is only valid in New Mexico, it indicates how other state courts are likely to rule. We anticipate seeing additional challenges to the workers, compensation payments for medical marijuana and will watch with interest how each state deals with the issue. One thing is certain – marijuana use as treatment is here to stay in workers’ compensation.
