Marijuana laws are changing: Here's what it means for insurers and risk managers

But no states currently allow for marijuana use in the workplace, while a number of federal laws and regulations explicitly bar its use in and out of workplace settings. For example:

• Under the Controlled Substances Act of 1970 (CSA), it is illegal to cultivate, possess, use, or distribute marijuana.
• The Drug-Free Workplace Act of 1988 requires some federal contractors — those with contracts worth $100,000 or more — and all federal grantees to maintain drug-free workplaces.
• The Omnibus Transportation Employee Testing Act of 1991 requires drug and alcohol testing of drivers, pilots, and others in "safety-sensitive" jobs. A December 2012 notice from the Department of Transportation's (DOT) Office of Drug & Alcohol Policy & Compliance stated that the use of marijuana is "unacceptable for any safety-sensitive employee" subject to DOT drug testing.

The Occupational Safety and Health Administration's General Duty Clause requires that employers maintain workplaces that are "free from recognized hazards that are causing or are likely to cause death or serious physical harm" to employees. Impairment by drugs or alcohol may be considered such a hazard.

The split between federal and state laws has created some confusion. In 2005, the US Supreme Court held in Gonzales v. Raich that the Commerce Clause of the US Constitution allows the federal government to enforce the CSA even in states where medical marijuana use is legal. But an October 2009 Department of Justice (DOJ) memo stated that federal resources should not focus "on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana." In August 2013, the DOJ said it would continue to enforce federal law, but would not challenge marijuana legalization in Colorado and Washington.

Insurance Coverage Considerations: Workers' Compensation

Most state workers' compensation laws allow an employer to use an "intoxication defense" to dispute an employee's claim of injury at work if the employee was intoxicated or impaired by alcohol, drugs, or medication at the time of injury. But in some jurisdictions the employer must prove that the intoxication or impairment was the sole cause of the injury in order to deny the claim. This means that contributing factors — for example, a wet floor, a falling object, or an equipment malfunction — could invalidate an intoxication defense, whether for marijuana, alcohol, or other drug use. In these cases, coverage could apply even if such use is against company policy. That could give rise to a scenario in which the employer may be able to terminate the employee for drug use, but still be obligated to provide coverage for the workers' compensation claim.

An intoxication defense may also be complicated by the fact that marijuana can stay in a person's system for months. Following an accident, an employee could test positive for marijuana even if he or she had used the drug during off hours and was never impaired at work. This means that it can be extremely difficult for employers and workers' compensation courts to determine whether an employee was actually impaired at the time of an injury.

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