Marijuana and Workers’ Compensation

Research indicates that between 10 and 20 percent of the nation’s workers who die on the job test positive for alcohol or other drugs. Studies also show that when compared with non-abusers, substance-abusing employees are more likely to be involved in a workplace accident or file a workers’ compensation claim.

California allows the use of marijuana for medical purposes (along with 21 other states and the District of Columbia). Will this cause your claims to skyrocket?

State medical marijuana laws "generally provide immunity from state and local criminal prosecution...[but] they do not provide employment protection," said Jeff Burgess, program coordinator, Technical Assistance for Employers in Oregon’s Bureau of Labor and Industries. This means that employers can prohibit employees from using marijuana while on duty, even if employees have a legitimate medical need. Refusing to hire or otherwise discriminating against those who use medical marijuana on their own time remains a gray area in most states.

In an informal opinion, the Equal Employment Opportunity Commission said the ADA does not protect individuals currently using drugs illegally. 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. Please remember that California law also prohibits employers from asking applicants about minor convictions for marijuana use that are more than two years old.

If you receive federal grants or have contracts for the procurement of property or services valued $100,000 or more, the federal Drug-Free Workplace Act of 1998 applies to your organization. If your organization contracts with or receives grants from the state of California, you must certify that you provide a drug-free workplace under California’s Drug-Free Workplace law.

If your drug-free workplace program includes drug testing, remember that laws designed to protect workers’ civil rights could apply. 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.

California has stricter drug-testing laws than many other states. You can test a job applicant for drug use only after making a job offer, but before he/she goes on payroll. After hire, California allows random drug tests only of employees in certain safety-sensitive positions. Court cases have generally upheld an employer’s right to require employees to submit to a drug test if the employer has reasonable suspicion.

To avoid problems with your drug testing program, please consider the following action steps:

• Put your drug-free workplace policy in writing. Spell out any penalties for violations.

• If your policy includes drug testing, spell out exactly who will be tested, when they will be tested, and what will happen to employees who test positive.

• Make sure every employee receives and signs a written copy of your drug-free workplace policy.

• Make sure that all supervisors receive training in how to detect and respond to workplace drug and alcohol abuse.

• Maintain detailed and objective records documenting any performance problems. Such records often provide a basis for referring workers to employee assistance programs.

• Try to get to know your employees as much as possible. This may help you more quickly identify workers who are in trouble or developing substance abuse problems.

• Never take disciplinary action against a worker or accuse a worker of a policy violation simply because that employee is acting impaired. Instead, try to clarify the reasons for the employee’s impairment. If drug testing is a part of your workplace policy, obtain a positive test result before taking any action.

For more suggestions on improving workplace safety, please contact the PCOC Insurance Program department of EPIC (formerly The Leavitt Group) at (877) 860-7378 or, email us @ ProPest@epicbrokers.com.