Medical marijuana & its impact on your business: are you covered?

Pennsylvania’s law legalizing medical marijuana was signed in April of 2016, but more than three years later, questions about its impact on employers, employees and even business insurance continue to sprout like weeds.

Many businesses with “no drug tolerance” policies and “drug-free workplace” programs have been forced to make modifications and consider the many shades of gray associated with this green remedy.

Knowing that drug and alcohol abuse can create serious liability issues in the workplace, employers are taking a hard look at their legal recourse if medical marijuana affects an employee’s job performance, while employees want to know their rights.

Employers may also find that their employee health policies don’t include medical marijuana.

Because the way the law and insurers handle medical marijuana is changing, it is critical to consider it in periodic assessments of your employee policies and as part of your insurance reviews.

5 steps employers should do now

Health and workers’ compensation insurers are not required to pay for medical marijuana, though the area is evolving. You’ll want to check with your insurance carrier to see if they cover medical marijuana and adjust your employee policies accordingly.

Here are 5 key steps employers should take to protect themselves even before medical marijuana enters the workplace:

1. Discuss your health and workers compensation policies with your carriers to provide insights into how your insurance will handle claims. If you have an Employment Practices Liability policy, the insurance company may have free handbook templates you can incorporate into your business’ policies. Most insurance companies provide legal consulting at a discounted rate for policyholders.
2. Review and update the drug policy in the employee handbook.
3. Review and update job descriptions to include standards of performance in high-risk areas such as driving.
4. Ensure that pre-employment drug testing is sensitive to medical marijuana users.
5. Remain interactive and make workplace accommodations where needed.

Additional legal considerations

Marijuana is still illegal at the federal level and in many states, which can affect interstate travel, the protections of the Americans with Disabilities Act, and other workplace policies.

You will want to check with your employment attorney to access the impact of Pennsylvania’s medical marijuana law on your company, but in general:

• Employees who have been approved to use medical marijuana must undergo a patient certification process and obtain an ID card in Pennsylvania.
• Medical marijuana still cannot be smoked in Pennsylvania.
• The law specifically prohibits employers from discharging, threatening, refusing to hire, or otherwise retaliating or discriminating against employees based on their medical marijuana certification.
• If an employee could injure himself or others because he drives a vehicle or operates heavy equipment, companies can move the worker to another position – even a lower-paying one — and the employee may have no recourse against the employer. These questions are destined to play out more in the courts.

Also, the law prohibits employees using medical marijuana from working on federal contracts that must comply with federal drug-free workplace laws. Employees with more than 10 nanograms of THC (the psychoactive ingredient in marijuana) in their blood cannot work with federally regulated chemicals, high-voltage electricity, confined spaces, heights, mines, and other posts that could be life-threatening to employees, employers, or the public.

Bottom line

Medical marijuana may indeed be a cure for many hard-to-treat ailments ranging from epilepsy and anxiety to chronic pain and opioid use disorder. But your insurance policies must keep abreast of this changing medical and regulatory landscape. If not, this “green” solution may cost you even more green.

In the wake of Pennsylvania’s medical marijuana law, a review of your employment policies and insurance coverage is in order. A certified insurance counselor can help ensure that you don’t have gaps in coverage, are not over-paying, and have attained the right balance of coverage, sufficient to cover risk.