For some, it may seem shocking that we're to the point ofdiscussing the impact of marijuana use in the workplace. Forothers, it's a no-brainer: a potential cure for some significantissues.

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Related: Workplace safety and weed at work

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Many are quick to joke about legalized pot, but for employersand risk managers, the notion of legalized medical or recreationalmarijuana is no laughing matter.

Rapidly evolving

Marijuana usage is a rapidly evolving issue. Public perceptionseems to be moving steadily toward support for legalization, forboth recreational and medicinal use. In fact, arecent report found 93% of people believe marijuana should belegal with a doctor's prescription.

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Related: Study finds support for marijuana legalization, but its future isstill cloudy

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Support for its legalization is growing at the state level. It'snow legal in 28 states plus Washington, D.C., and new states arepushing to legalize it every year.

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However, marijuana remains classified as a Schedule 1 drug underthe federal Controlled Substances Act (CSA) of 1970. Two petitions to strip marijuana of its Schedule 1 classificationwere denied in 2016.  And the Trump administration —specifically Attorney General Jeff Sessions and Health and HumanServices Secretary Tom Price — have expressed opposition to medicaland recreational marijuana use. While it's too early to tellexactly what form changes may take, it seems unlikely that therewill be a universal understanding any time soon.

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Meanwhile at the state level, marijuana cases are being triedfrequently, and new precedents are set all the time. For example,in Colorado where both medical and recreational marijuana are legalaccording to state law, the state Supreme Court ruled that employees can be fired for usingmedical marijuana off the clock, even if they aren't impairedon the job.

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This discrepancy between state and federal laws means there islittle guidance about what the statutes mean or an obviousdirection for employers to take regarding workplace drug-usepolicies.

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Related: 5 developments impacting medical marijuana in workers'compensation

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(Photo: Shutterstock)

What employers need to know

Who can use medical marijuana? The laws vary,but states with medical marijuana laws typically permit people withserious medical conditions — like cancer, Crohn's disease, epilepsyand multiple sclerosis — to use marijuana or its active ingredientTHC without penalty. Most patients need permission from a doctorand must buy marijuana from certified dispensaries.

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However, as the Colorado court decision indicates, employers arenot required to allow the use of medical marijuana, even if it'sbeen obtained legally. This is where it gets complicated.

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How does this change affect employers? Theconflict between federal laws and those of some states createuncertainty for employers. Thus far, courts have upheld anemployer's right to maintain a zero-tolerance position regardingillegal drug usage.

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Even if an employer is more liberal regarding eitherrecreational or medicinal marijuana usage, they would likely have apolicy against working while impaired. One of the challenges isthat, unlike alcohol or some other drugs, it is very difficult todetermine the time of use or level of impairment for marijuana, asit can remain in a person's system for weeks.

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Additionally, if the employer is — or hopes to become — afederal contractor, they cannot have anything other than azero-tolerance position against something that is consideredillegal under federal law.

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Related: Insurance implications of legal marijuana: Questions continue toroll in

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(Photo: Shutterstock)

What should employers do?

That's a good question. As mentioned earlier, even if morestates continue to legalize medical marijuana, the issues remainuntil the federal law is changed. Regardless, employers should takesteps now to ensure they've got policies to protect themselves.

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For example, employers should update their employee handbooks toclearly state their position on drug usage. Even if the employerwants to allow recreational or medicinal use in compliance withtheir state laws, it is recommended that they maintain the sameposition they would on alcohol use — it is not likely that anemployee handbook would comment on legal alcohol consumption.

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However, one would expect to see comments forbidding reportingto work impaired or under the influence of alcohol. As mentioned,employers who work in an industry where federal contracts or grantsare being used are obligated to abide by the Drug-Free WorkplaceAct. The same goes for industries that involve transportation orthe use of heavy equipment.

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All employers need to provide a safe workplace to theiremployees, and drug policies should reflect this. Employers shouldreview their drug policies often, update training for new andincumbent employees, and communicate with employees as laws changein the coming years.

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Related: Seeing marijuana through the haze of myths

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James W. Gow Jr., CPCU, AU is senior vice president,Property & Casualty Practice, at Corporate Synergies. Gow serves as aresource to both the Insurance Institute of America and the A.M.Best Company. He can be contacted at [email protected].

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