(Updated 10/20/2021)
Summary: The legalization of marijuana has long been a topic of debate. Proponents state that it is nonaddicting, less harmful than cigarettes and alcohol, and relieves certain symptoms such as nausea and pain associated with debilitating medical conditions more safely than prescription drugs. Opponents claim that it is more harmful than tobacco products, it damages the immune system, raises blood pressure, and does not provide beneficial relief of various medical ailments. This camp also contends that marijuana is a gateway drug.
Many states have now legalized not only medical marijuana, but recreational, or adult marijuana.
Medical Marijuana
While the debate continues, twenty-seven states, the District of Columbia, and two U.S. territories have enacted legal medical marijuana statutes. Eight states have legalized it for recreational use. Each state that allows it medically has a list of allowed conditions such as the following partial list:
- AIDS
- Anorexia
- Arthritis
- Cachexia
- Cancer
- Chronic pain
- Depression
- Glaucoma
- Migraine
- Persistent muscle spasms, including, but not limited to, spasms associated with multiple sclerosis
- Seizures, including, but not limited to, seizures associated with epilepsy
- Severe nausea
In the states that have enacted legal medical marijuana statutes, except Oregon and Illinois, all individuals must be able to prove that they are residents of the state with written documentation from a physician stating that he has a debilitating medical condition and might benefit from marijuana use in order to receive a registry identification card permitting them to obtain and use marijuana legally. In Arkansas, patients may use Arkansas registration cards or out of state cards proving they qualify. Medical marijuana is legal in the following states:
- Alabama
- Alaska (also legalized recreational use marijuana)
- Arizona
- Arkansas
- California (also legalized recreational use marijuana)
- Colorado (also legalized recreational use marijuana)
- Connecticut (also legalized recreational use marijuana)
- Delaware
- District of Columbia (also legalized recreational use marijuana)
- Florida
- Hawaii
- Illinois
- Louisiana
- Maine (also legalized recreational use marijuana)
- Maryland
- Massachusetts (also legalized recreational use marijuana)
- Michigan
- Minnesota
- Missouri
- Montana
- Nevada (also legalized recreational use marijuana)
- New Hampshire
- New Jersey (also legalized recreational use marijuana)
- New Mexico (also legalized recreational use marijuana)
- New York (also legalized recreational use marijuana)
- North Dakota
- Ohio
- Oregon (also legalized recreational use marijuana)
- Pennsylvania
- Rhode Island
- South Dakota
- Utah
- Vermont
- Virginia (also legalized recreational use marijuana)
- Washington (also legalized recreational use marijuana)
- West Virginia
Patients and physicians are allowed to cultivate marijuana in all listed states but New Jersey, and New Mexico requires a special license in order for patients and physicians to grow marijuana. Most statutes state that medical marijuana users cannot be arrested for possession, transportation, delivery, or cultivation of medical marijuana in an amount established by the state statute. Note however that such statutes make the individual only criminally immune from state law. Marijuana remains a schedule I substance under federal law. So, while someone may be using it for medicinal purposes according to the state statutes, it is still illegal to obtain and use marijuana by federal standards. States that have legalized marijuana for recreational use as well as medical use are Washington, Oregon, Colorado, Alaska, and D.C. The following seventeen states that have not yet enacted legal medical marijuana statutes have made medical marijuana with low THC levels and high cannabidiol (CBD) levels legal for use by certain individuals:
- Georgia
- Idaho
- Indiana
- Iowa
- Kansas
- Kentucky
- Mississippi
- North Carolina
- Oklahoma
- South Carolina
- Tennessee
- Texas
- Wisconsin
- Wyoming
Most of the CBD-only laws allow plants to contain between .5 and 3 percent THC because these have been used effectively to treat epilepsy in children. Many states have similar pending legislation. In the majority of states with CBD-only laws, the patient must have a form of intractable epilepsy. Under Florida law, an eligible patient is one who is suffering from cancer or a physical medical condition that chronically produces symptoms of seizures or severe and persistent muscle spasms, if no other satisfactory alternative treatment options exist for that patient.
Billions of dollars are at stake. In 2013, legal marijuana sales were projected to hit $1.5 billion in the U.S., and analysts project increasing annual sales of $10.2 billion by 2018, as reported by the Huffington Post.
This legalization of marijuana for medicinal purposes creates an entirely new industry, that of growing, cultivating, and dispensing medical marijuana. Insurance coverage issues exist for the growers, dispensers, and employers as well as for patients, caregivers, and physicians.
Recreational use expands that even further. The District of Columbia allows the private individual to grow and harvest marijuana, but not to sell it. One estimate of the current harvest available from private growers in D.C. is more than 100 pounds, with a street value of $500,000. A fitness instructor is giving some away to anyone who pays for a massage. A T-shirt vendor gives it away to those who tip well. Another individual has started giving it away in exchange for donations to a company; he states he will give part of the proceeds to charity. The D.C. State Fair added a marijuana growing competition to its lists of events.
EPL Issues
One of the bigger issues is whether employers must make accommodations for employees registered to use medical marijuana.
What becomes an even larger problem is the employee's use of marijuana outside of work. While many states are silent on an employee's use of the drug outside of work, the following states extend protections to a card-bearing employee for use outside of work: Arizona, Delaware, Maine, and New York. When used regularly, marijuana can stay in the system for forty-five to ninety days. This makes it particularly difficult for patients using marijuana who work in places that test for drugs. A patient can smoke only off hours but still test positive for the substance at any time.
A suit was filed in July 2013 in Michigan by an employee using marijuana legally to treat pain from an inoperable brain tumor and sinus cancer. His employer, Wal-Mart, tested him for drugs and the test came back positive. The worker was fired although he had not smoked at work and was using the drug under the direction of a physician. The worker sued, seeking to be rehired, receive compensatory and punitive damages, and other remedies. The suit is Casias v. Wal-Mart Stores, Inc. and was filed in the Circuit Court of Calhoun County in Michigan. This case reached the conclusion that MMMA does not govern private employment.
In a separate case an applicant revealed medical marijuana use when he was being hired. A drug test was conducted, and when it showed use of the drug, the applicant was out of a job. The company claimed it followed federal guidelines for its drug policy and that employees are allowed to take leave to use marijuana to combat the side effects of treatment for a serious ailment. However upon return, all evidence of the drug must be out of their systems.
Employers cite safety issues as reasons for termination when an employee has signs of marijuana use in his system, even though it is used for medicinal purposes.
One of the largest legal issues is that marijuana is still considered an illegal substance by federal law, even in states that have approved its use for medicinal purposes. There are no requirements under the federal law that employees using marijuana be fired and there are no real guidelines for employers to follow. Except under very limited circumstances, states are not required to enforce federal law or prosecute people for engaging in activities prohibited by federal law. Colorado's Supreme Court is currently deciding whether medical marijuana use can be considered "lawful activity" for purposes of the protections afforded by the statute. See Coats v. Dish Network, L.L.C., 300 P.3d 147 (Colo. App. 2013).
Case law in California, Colorado, Oregon, and Washington has determined that a private employer may still terminate an employee for failing a company drug test, even if that employee is authorized under state law to use cannabis medicinally. See generally Beinor v. Industrial Claim Appeals Office, 262 P .3d 970 (2010) and Curry v. MillerCoors, Inc., No. 12-CV-02471, 2013 WL 4494307 (D. Colo. Aug. 21, 2013) (ruling that employee at fault under federal law for separation from employment, despite constitutional amendment allowing medical marijuana). ADA is no help as it excludes use of illegal drugs. In Arizona, Delaware, Minnesota, and Nevada, employers cannot terminate employees for marijuana use off duty. Most states, however, have not reached a legal consensus on this issue.
The following chart shows various cases surrounding marijuana use on the job and in other situations:
| Case | Summary | Holding |
| Lewis v. Am. Gen. Media, No. 33,236, 2015 WL 3941038 (N.M. Ct. App. June 26, 2015)
| American General Media appealed a compensation order challenging the determination that Lewis's use of medical marijuana constituted reasonable and necessary medical care that required reimbursement.
| Lewis's use of medical marijuana was reasonable and necessary medical care that required reimbursement
|
| Chunn v. State Dept. of Ins., 156 So. 3d 884 (Miss. 2015)
| Chunn, a bail agent, pled guilty thirty years ago in another state to felony possession of marijuana. He is appealing a decision from the Department of Insurance that refused to renew his bail agent license because of a new statute prohibiting felons from obtaining or renewing a bail agent license. | The Insurance Commissioner could not deny Chunn's license renewal because of failure to disclose a felony conviction thirty years ago.
|
| Vialpando v. Ben's Auto. Servs., 331 P.3d 975 (N.M. 2014)
| Ben's Auto Service appeals a workers compensation order requiring them to reimburse Vialpando for medical marijuana use.
| Workers Compensation Act authorizes reimbursement for medical marijuana.
|
| Garcia v. Tractor Supply Co., 154 F. Supp. 3d 1225 (D.N.M. 2016), appeal dismissed (Mar. 25, 2016) | Employee with AIDS used medical marijuana and failed employer drug test. Employee sued, claiming termination violated the New Mexico Human Rights Act. | New Mexico's Compassionate Use Act did not require employers to accommodate marijuana use and the Controlled Substances Act preempts the Compassionate Use Act. |
| Gallo v. Penford Products Co., 829 N.W.2d 590 (Iowa Ct. App. 2013)
| Gallo appeals the decision for denial of his claim that a work injury caused his depression requiring him to use marijuana.
| There is not enough evidence that the work injury caused Gallo's depression; therefore, the workplace did not have to compensate him for marijuana use.
|
| Am. Interstate Ins. Co. v. Hinson, 172 S.W.3d 108 (Tex. App. 2005)
| Hinson sought judicial review for denial of his workers' compensation claim based on the assumption that he had been intoxicated at time of accident because he admitted to using recreational marijuana.
| Evidence shows that Hinson was not under the influence of marijuana at the time of the accident.
|
| Brown v. Alabama Elec. Co., 60 Ark. App. 138, 959 S.W.2d 753 (1998)
| Brown applied for workers' compensation because of a car accident he was involved in while working. There was evidence of marijuana in his body at the time of the accident which lead the Workers' Compensation Commission to deny his claim. | Evidence supported that injuries sustained in the accident were because of marijuana and thus not compensable. |
| Barnett v. State Farm Gen. Ins. Co., 200 Cal. App. 4th 536, 132 Cal. Rptr. 3d 742 (2011)
| Barnett, under his homeowners policy, brought action against State Farm for breach of contract and breach of covenant of good faith and fair dealings because police seized twelve seven-foot tall marijuana plants, a bag containing five ounces of marijuana, and a tray with loose marijuana and rolling paper from his home while executing a search warrant. | Police officers' seizure of insured's marijuana was not a covered theft. Police department's destruction of insured's marijuana was not a covered theft, and State Farm did not commit bad faith in failing to wait for outcome of criminal proceedings before denying coverage. |
| Prudential Prop. & Cas. Ins. Co. v. Brenner, 350 N.J. Super. 316, 795 A.2d 286 (App. Div. 2002)
| Varkala was shot and killed in Brenner's home during an attempt to rob him of a large stash of marijuana. Brenner believed that Prudential Property and Casualty Insurance owed a duty to defend or indemnify Brenner under his homeowners policy. | Prudential did not need to give Brenner coverage because of an exclusion in the policy which exempted bodily injury arising out of the use, sale, manufacture, delivery, transfer, or possession by any person of a controlled substance. |
| Adkins v. Texas Mut. Ins. Co., No. 04-07-00750-CV, 2008 WL 4500322, at *1 (Tex. App. Oct. 8, 2008)
| Adkins fell on ice in a walk-in-freezer at work and filed a workers compensation claim. Adkins admitted that prior to the accident he smoked marijuana, so the claim was denied due to intoxication. | Adkins was intoxicated at the time of his injuries by reason of marijuana, barring him from his claim. |
| Desert Valley Const. v. Hurley, 120 Nev. 499, 96 P.3d 739 (2004)
| Hurley was injured at work when he fell from a scaffold. His workers compensation claim was denied when it was found that he had marijuana in his system. | Even though Hurley had marijuana in his system, he was entitled to workers compensation because the proximate cause of his injuries was due to the movement of the scaffold into a hole. |
The following chart shows that no state requires an employer to make accommodations for use of marijuana while an employee is on the workplace premises. Vermont states that an employee cannot be under the influence while on premises, but many of the other states have no such provision.
|
| Employer Required to Accommodate Employee Use of Medical Marijuana | Amount Patients Allowed to Possess | Maintenance of Plants | Cannabidiol-Only (CBD) | Insurance Coverage | Statute |
| Alabama | Not stated. |
|
| Patients with debilitating epileptic conditions who are acting in state-sponsored clinical trials may use or possess CBD (maximum THC level of 3%). | Not required to cover. | "Carly's Law" Ala. Code § 13A-12-214.2 "Leni's Law". Ala. Code § 13A-12-214.3. |
| Alaska | No accommodation in place of employment. | One ounce in usable form, 6 plants, no more than 3 mature and flowering and producing at any one time | Not specified. |
| Not required to cover. | Alaska Stat. Ann. §17.37.040. |
| Arizona | No accommodation for use in the workplace. An employer may not discriminate against a person based upon the person's cardholder status or a positive drug test for marijuana components (as long as use was not on the premises of the place of employment or during the hours of employment).
| 2.5 ounces at any one time. If the patient or caregiver is authorized to cultivate marijuana, he or she may cultivate up to twelve plants. | Must be stored in an enclosed, locked facility, except when it is being transported because the qualifying patient is moving.
Up to 12 plants if 25 miles away from a dispensary. |
| Not required to cover. | Ariz. Rev. Stat. Ann. §§36-2801 to 36-2819. |
| Arkansas | Cannot discriminate against or penalize worker if medically qualified. Not required to accommodate ingestion at work or working under the influence. | 2 ½ ounces. | Licensed dispensaries may have 50 mature plants. |
| Not required to cover. | Issue 6 – Medical Marijuana Amendment. |
| California | No accommodation on property or premises of employment or during hours of employment. | Eight ounces dried, no more than 6 mature or 12 immature plants unless doctor indicates this is not adequate for the patient's needs. | Not specified. |
| Fee waived for indigent county medical services program patients. Reduced for Medi-Cal patients. Insurers not required to cover. | Cal. Health & Safety Code §§11362.7 to 11362.9 amended by Prop 64. |
| Colorado | No accommodation for use in workplace. | Two ounces in usable form, no more than 6 plants with 3 or fewer being mature and flowering. | Not specified. |
| Not required to cover. | Colo. Const. art. XVIII, §14 but see Haeberle v. Lowden, Colo.Dist.Ct.Aug. 08, 2012. See also "Colorado Medical Marijuana Code" Colo. Rev. Stat. Ann. § 12-43.3-101 through 1102. |
| Connecticut | No accommodation for use in the workplace. | One month's supply or 2.5 ounces. | Must be stored in a secure location. |
| Not required to cover. | Conn. Gen. Stat. Ann. §§21a-408 to 21a-429, Conn. Agencies Regs. §§21a-408-1 to 21a-408-70. |
| DC | Not specified. | Two ounces dried. | Dispensaries are limited to growing a maximum of 1000 plants on site at any one time (amended by MEDICAL MARIJUANA SUPPLY SHORTAGE TEMPORARY AMENDMENT ACT OF 2015). This temporary increased limit will expire in 2016 and return to 500. |
| Not required to cover. | DC ST §§7-1671.01 to 7-1671.13; 2015 District of Columbia Laws Act 21-104; 2015 District of Columbia Laws 21-18 (Act 21-71). |
| Delaware | No accommodation for use in the workplace. Cardholder status or a positive drug test for marijuana components are not proper bases for discrimination, as long as use was not on the premises of the place of employment or during the hours of employment. | Not more than 6 ounces. | A compassion center must implement security and safety measures to deter and prevent unauthorized access. This includes a fully operational alarm system and video surveillance system. A registered compassion center shall possess no more than 2,000 ounces of usable marijuana. |
| Not required to cover. | Del. Code Ann. tit. 16, §4901A to 4926A, Code Del. Regs. 16 4470. |
| Florida | Employer may restrict use. |
|
| State-qualified patients may possess cannabis strains containing 10% or more of CBD and no more than .8% of THC. | Not required to cover. | Fla. Stat. Ann. §381.986, 2014 Florida Senate Bill No. 1030; Fla. Const. art. X, § 29. |
| Georgia
| Not required to accommodate. |
|
| Clinical research for end stage cancer, ALS, MS, seizure disorders, Crohn's, mitochondrial disease,Parkinson's, Sickle Cell disease: Cannabis oils with low THC= below 5% THC and at least an equal amount of CDB. | Not addressed. | 2015-2016 Regular Session – HB 1. Haleigh's Hope Act Ga. Code Ann. § 16-12-190 through 191; Ga. Code Ann. § 31-51-1 through 10; "Controlled Substances Therapeutic Research Act." Ga. Code Ann. § 43-34-120 through 126; Ga. Code Ann. § 31-2A-18. |
| Guam
| Possession and use not protected in the work place. | No more than a 3 month supply. |
|
| Not addressed. | "Joaquin (KC) Concepcion II Compassionate Cannabis Use Act of 2013." G.C.A. § 122501 through 122507. |
| Hawaii | Not specified. | An "adequate supply," which must not exceed 4 ounces and 7 plants. | Not specified. |
| Not required to cover. | Haw. Rev. Stat. §§329-121 to 329-128; Haw. Code R. 11-160-1 through 56. |
| Idaho
|
|
|
|
|
| SB 1146 (VETOED by governor 4/16/15). |
| Illinois | No accommodation for use in workplace as long as there is no discrimination. | 2.5 ounces of cannabis per 14-day period. | Caregivers are subject to the possession limit.
Cultivation centers must cultivate cannabis in an enclosed, locked facility with a 24 hour surveillance system. |
| Not required to cover. | 410 ILCS 130/1 to 410 ILCS 130/999 (Amended by2015 Ill. Legis. Serv. P.A. 99-96 (H.B. 341) (WEST)) |
| Iowa | Not addressed. |
|
| A patient with intractable epilepsy may possess up to 32 ounces of cannabidiol oil (minimum THC level 3 percent). | Not addressed. | Iowa Code Ann. §124D.1 through 6. |
| Kentucky | Not addressed. |
|
| "Marijuana" does not include cannabidiol when administered pursuant to a doctor's order, or a drug or substance approved for use by the U.S. FDA for persons participating in a clinical trial. | Not addressed. | KY LEGIS 112 (2014), 2014 Kentucky Laws Ch. 112 (SB 124). |
| Louisiana
| Not addressed. |
|
| "THC shall be reduced to the lowest acceptable therapeutic levels available through scientifically acceptable methods." | Not addressed. | 2015 SB 143 The "Alison Neustrom Act" La. Stat. Ann. § 40:1046. |
| Maine | May not refuse to hire registered patient. No accommodation for ingestion at workplace or for working while under influence. Registered child patient may not be denied eligibility to attend school. | Two and one half ounces plus an incidental amount, 6 plants. | Keep in enclosed, locked facility unless moving or taking to patient's property for cultivation. |
| Not required to cover. | Me. Rev. Stat. tit. 22, §§2421- 2430 (Amended by2015 Me. Legis. Serv. Ch. 369 (H.P. 381) (L.D. 557) (WEST)). |
| Maryland | Not addressed. | Amount determined by the commission to be a 30 day supply unless written statement from physician that amount would not be adequate. | TBD. | Processing agents must be at least 21. | Not addressed. | Md. Code Ann., Health-Gen. §§13-3301 to 13-3316, Md. Code Ann., Crim. Law §§5-601(c)(Amended by2015 Maryland Laws Ch. 351 (S.B. 456)) , 5-619(c); 2014 Maryland Laws Ch. 158 (S.B. 364); Md. Code Regs. 10.62.30.01 through .999. |
| Massachusetts | No accommodation for use in workplace. | A sixty-day supply. | Kept in an enclosed, locked facility. |
| Not required to cover. | Mass. Gen. Laws Ann. ch. 94C, §§1-1 to 1-17. |
| Michigan | No accommodation for ingestion at workplace or for working while under influence. | Two and one half ounces, 12 plants. | Kept in enclosed, locked facility. |
| Not required to cover. | Mich. Comp. Laws Ann. §§333.26421 to 333.26430. |
| Minnesota | No accommodation for ingestion at workplace. No discrimination based upon the person's status as a registered qualifying patient or registered designated caregiver, or a positive drug test, unless the patient was impaired on the premises of the place of employment or during the hours of employment. | Not specified. | Kept in an enclosed, locked facility. |
| Not required to cover. | Minn. Stat. Ann. §§152.21 to 152.37 (Amended by2015 Minn. Sess. Law Serv. Ch. 74 (H.F. 1792) (WEST) and by 2015 Minn. Sess. Law Serv. Ch. 74 (H.F. 1792) (WEST)); Minn. R. 4770.0100 through .4030. |
| Mississippi | Not addressed. |
|
| A patient with intractable epilepsy may possess cannabis extracts that contain more than 15% cannabidiol and no more than .5% THC. | Not addressed. | MS LEGIS 225 (2014), 2014 Miss. Laws WL No. 225 (H.B. 1231), § 41-29-136. CBD oil; Haper Grace's Law Miss. Code. Ann. § 41-29-136; Miss. Code. Ann. § 41-29-113. |
| Missouri | Not addressed. |
|
| A patient with intractable epilepsy may possess 20 ounces of cannabis extracts containing 5% or more of CBD and no more than .3% THC. | Not addressed. | Mo. Ann. Stat. §195.207. |
| Montana | No accommodation for use in workplace. | One ounce,4 mature plants, and 12 seedlings. | One ounce,4 mature plants, and 12 seedlings per registered cardholder for whom they are a provider. |
| Not required to cover. | Mont. Code Ann. §§50-46-301 to 50-46-344 (Amended by2015 Montana Laws Ch. 239 (H.B. 478) and 2016 laws I-182). |
| Nevada | Not required to allow use in workplace but must make reasonable accommodations for workers who use outside workplace if hold valid card unless that would cause danger, undue hardship, or prohibit from fulfilling job duties. | 12 plants whether or not mature. Must safeguard in a secure location. 2 ½ ounces per 14 day period. Amount of marijuana infused products to be determined by the Division. | Limits on home cultivation if patients reside within 25-miles of an operating dispensary. |
| Not required to cover. | Nev. Rev. Stat. Ann.§§453A.010 to 453A.810 (Amended by2015 Nevada Laws Ch. 506 (S.B. 447) and 2015 Nevada Laws Ch. 401 (A.B. 70) and 2015 Nevada Laws Ch. 495 (S.B. 276)). |
| New Hampshire | No accommodation of the therapeutic use of cannabis on the property or premises of any place of employment. An employer may discipline an employee for ingesting cannabis in the workplace or working while under the influence of cannabis. | Two ounces usable. Any amount unusable. | An alternative treatment center shall not possess or cultivate cannabis in excess of: eight cannabis plants, 160 seedlings, 80 ounces of usable cannabis, or 6 ounces of usable cannabis per qualifying patient; and three mature cannabis plants, 12 seedlings, and 6 ounces for each qualifying patient who has designated the treatment center to provide cannabis for therapeutic use. |
| Not required to cover. | N.H. Rev. Stat. Ann. §§126-X:1 to 126-X:11. |
| New Jersey | No accommodation for use in workplace. | Two ounces per month. | A reasonable amount as determined by the department. |
| Not required to cover. | N.J. Stat. Ann. §§24:6I-1 to 24:6I-16. |
| New Mexico | Criminal prosecution or civil penalty for possession, distribution or transfers of marijuana or use of marijuana still possible if it occurs in the workplace of patient or caregiver. | An "adequate supply," which means 230 units per 3 month period. 230 units = 230 grams or 8 ounces. Additional 115 units if dr. deems medically necessary and submits statement. Patients with personal production license: 4 mature female plants, 12 seedlings and male plants. | Must be secured, not visible from street. A licensed non-profit producer is limited to 150 mature plants and an inventory that reflects current patient needs. |
| Not addressed. | N.M. Stat. Ann. §§26-2B-1 to 26-2B-7, NM ADC 7.34.3; 7.34.4. |
| New York | An employer may not discriminate or penalize a person for their status as a certified patient or designated caregiver. Being a certified patient is a disability. May still prohibit employee from performing duties while impaired. | 30 day supply as determined by the practitioner consistent with commissioner's regulations. | A registered organization must only manufacture medical marihuana in an indoor, enclosed, secure facility. |
| Not required to cover. | 2013 New York Senate Bill No. 4406, New York Two Hundred Thirty-Seventh Legislative Session; McKinney's Public Health Law § 3360 – 3369-E. |
| North Carolina | Not addressed. |
|
| A person with intractable epilepsy may possess cannabis extracts containing more than 5 percent CBD and no more than .9 percent THC. | Not addressed. | NC ST §§90—113.100 to 90—113.106, N.C. Gen. Stat. Ann. § 90-94.1. |
| North Dakota | Not stated. | If patient is more than 40 miles from compassionate care facility and 1000 feet from school patient may grow 8 plants. Must lock facility and give law enforcement notice. If from dispensary: 3 ounces per 14 day period. | Max 1000 plants, 3500 ounces. |
| Not addressed, but part of criteria state will consider when licensing facilities is whether they make it affordable for SSDI and Medicaid patients. | "North Dakota Compassionate Care Act" N.D. Cent. Code Ann. §§ 19-24-01 through 13. |
| Ohio | No accommodation for use in workplace. | 90 day supply as defined by the pharmacy board. | Amount to be determined by the department. |
| Not addressed. | Ohio Rev. Code Ann. §§ 3796.01 through 30. |
| Oklahoma
| Not addressed. |
| No in-state production allowed, so products would have to be brought in. Any formal distribution system would require federal approval. | A preparation of cannabis with no more than .3% THC in liquid form. People under 18 (minors) Minors with Lennox-Gastaut Syndrome, Dravet Syndrome, or other severe epilepsy that is not adequately treated by traditional medical therapies. | Not addressed. | Okla. Stat. Ann. tit. 63, § 2-551 and 2-801 through 805. |
| Oregon | No accommodation for use in workplace. | Medical: 6 plants, 24 ounces usable. Recreational growing their own: max 4 plants, 8 ounces usable, 16 solid, 72 liquid, 16 concentrates. Recreational buying from dispensary: max 1 ounce usable, 16 solid, 72 liquid, 16 concentrate. | There must be a strong security system in place. |
| Not required to cover.
| O.R.S. Chapter 475B. |
| Pennsylvania | Employer cannot fire, refuse to hire, or discriminate against patients. Not required to permit use on premises or working under the influence. | Dispensaries may give 30 day supply again once patient's supply has gone down to 7 days. | Dispensaries must be secured and locked and more than 1000 from schools. Growers and processors must have secured locked facilities with electronic surveillance. |
| Not required to cover. | Medical Marijuana Act 35 Pa. Stat. Ann. §§ 10231.101 through 2110. |
| Puerto Rico | Not allowed to use or consume in workplace unless authorized by the employer. | Medical tourism permitted if have valid card from another state. If not from U.S. get permission from Puerto Rican Dr. 1 ½ ounce/day. | Must maintain inventory tracking system. Dispensaries must have at least 1 security guard 24/7. Cultivators – at least 2 guards 24/7. |
| Not required to cover. | Reg. 8766; Reg. 8686; Executive Order 2015-10; Admin order 352 (PR health dept). |
| Rhode Island | No accommodation for use in the workplace. No employer may refuse to employ or otherwise penalize a person solely for his or her status as a cardholder. | Two and one-half ounces, 12 mature plants with valid medical marijuana tags on them. Must store indoors. | Stored in an indoor facility. Non-residential cooperative cultivation is limited to 10 ounces of usable marijuana, 48 mature plants and 48 seedlings. Residential cooperative cultivation is limited to 10 ounces of usable marijuana, 24 mature plants and 24 seedlings. Effective January 1, 2017, cooperative cultivations shall apply to the department of business regulation for a license to operate.
|
| Not required to cover. | R.I. Gen. Laws Ann. §21-28.6-1 to 21-28.6-14. |
| South Carolina | Not addressed. |
|
| Requires written certification from a physician that the patient has been diagnosed with any form of epilepsy that is not adequately treated by traditional medical therapies and the physician's conclusion that the patient might benefit from cannabidiol (not more than 0.9% THC). | Patients given marijuana by government agencies in controlled substances therapeutic research will not be charged for marijuana, nor will their insurers. Patients may still be charged for ancillary medical services. | SC LEGIS 221 (2014), 2014 South Carolina Laws Act 221 (S.B. 1035); S.C. Code Ann. § 44-53-610 through 660; S.C. Code Ann. § 44-53-1810 through 1840. |
| Tennessee | Not addressed. |
|
| "Marijuana" does not include cannabis oil containing cannabidiol with less than .9% of THC if possessed as part of a clinical research study on the treatment of intractable seizures. |
Not addressed. | Tenn. Code Ann. §39-17-402. |
| Texas
| Not addressed. |
|
| "Low-THC Cannabis" with not more than 0.5 percent by weight of thc; and not less than 10 percent by weight of cannabidiol for intractable epilepsy. | Not addressed. | SB 339 (2015) Texas Compassionate Use Act; Tex. Health & Safety Code Ann. § 487.001 through 487.201. |
| Utah | Not addressed. |
|
| Persons with intractable epilepsy will be exempted from criminal penalties for the use and possession of marijuana extracts that are very low in THC (less than .3%) and sufficiently high in cannabidiol (at least 15%). | Not addressed. | Utah Code Ann. §§4-41-101 to 4-41-103. |
| Vermont | Subject to arrest/prosecution for being under the influence or smoking while in a workplace or place of employment. | Two ounces, 2 mature plants, 7 immature plants per thirty-day period. | Must be cultivated in a secure indoor facility. If transported, must be secured in a locked container. A dispensary may possess at any one time up to 28 mature plants, 98 immature plants, and 28 ounces of usable marijuana. If a dispensary is designated by more than 14 registered patients, it may possess at any one time 2 mature plants, 7 immature plants, and 4 ounces of usable marijuana for every registered patient. |
| Not required to cover. | Vt. Stat. Ann. tit. 18, §§4471 to 4474m. |
| Virginia
|
Not addressed. |
| No in-state means of acquiring cannabis products. | Cannabis oils with at least 15% CBD or THC-A and no more than 5% THC for intractable epilepsy or a dilution of the resin of the Cannabis plant that contains at least 50 milligrams of cannabidiol per milliliter but not more than five percent THC. | Not addressed. |
HB 1445; Va. Code Ann. § 18.2-251.1; Va. Code Ann. § 54.1-3408.3; 2016 Virginia Laws Ch. 577 (S.B. 701). |
| Washington | No accommodation for use in the workplace. | Depending on prescription: 6 plants, 48oz solid infused product, 3oz mj, 216oz infused liquid, 21g concentrates. If Dr. determines needs more: 15 plants, 16oz mj. Cooperatives may grow up to 60 plants. | Depending on prescription 6 or 15 plants allowed. |
| Insurers may cover use but cannot be required to. | Wash. Rev. Code Ann. §69.51A.005 to 69.51A.903. |
| Wisconsin |
Not addressed. |
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| A physician may apply for an investigational drug permit for cannabidiol under 21 as a treatment for a seizure disorder. | Not addressed. | Wis. Stat. Ann. §§961.34, 961.38. |
| Wyoming | Not addressed. |
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| Hemp extract = less than 0.3% THC and at least 5% cannabidiol. | Not addressed. | HB 32 (2015); Wyo. Stat. Ann. § 35-7-1901 through 1903. |
Recreational Marijuana
This chart provides the parameters for possession in states that allow recreational, or adult, usage of marijuana.
| State | Age to Possess | Amount Allowed | Consumption Legal | Transfer to Another? | Statute |
| Alaska | 21 or older. | 1 ounce or 6 plants, if three are mature, as long as it is not for sale. | Yes. | Yes, if one ounce or less and person is 21 or above. | Alaska Stat. Ann. §17.38.020.
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| California | 21 or older. | 1 ounce or 28.5 grams of marijuana or 8 grams of concentrate. Dispensaries can't sell to recreational users until 2018 but rec users can grow own plants now. | Yes. | Can give to another but not sell to another without a license and person must be 21 or over. | Proposition 64 – The Adult Use of Marijuana Act. |
| Colorado | 21 or older. | 1 ounce or 6 plants, if three are mature, as long as it is not for sale. | Yes. | Yes, if one ounce or less and person is 21 or above. | Colo. Const. art. XVIII, §16.
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| Maine | 21 or older. | 2 ½ ounces. Up to 3 mature plants or up to 12 immature plants per person, or unlimited number of seedlings. | Yes. | Retailers must be licensed. | 28-B M.R.S. §1501. |
| Mass. | 21 or older. | 10 ounces or 6 plants out of public view per private residence. | Yes. | Retail sales scheduled for 2018. Not legal to buy in state until then. Can give away 1 oz for free. | Question 4. |
| Nevada | 21 or older. | 1 ounce cannabis or 1/8 ounce concentrate. | Yes. | Reg and licensing of retail to begin in 2018. | Question 2 – Nevada Marijuana Legalization Initiative. |
| Oregon | 21 or older. | Can possess up to 8 ounces of usable marijuana in the home and 1 ounce. of usable marijuana outside the home. Can grow up to 4 plants per residence out of public view. | Yes. | Dispensaries may sell small amounts. | Measure 91 of the OLCC. |
| Washington | 21 or older. | Possession of 1 oz. as well as 16 oz. in solid form and 72 oz. in liquid form. | Yes. | Need a license. | Wash. Rev. Code Ann. §69.50.360.
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Coverage Issues
There are many coverage issues that are standard for any commercial enterprise. These issues apply to the medical marijuana industry as well. Workers compensation, product liability, general liability, damage to insured property from perils such as theft, windstorm, lightning, explosion, wind/hail, riot or civil commotion, vandalism, water damage, vehicles, and similar perils are all issues. Exclusions are similar as well and include ordinance or law, earth movement, nuclear hazard, governmental action, war, and other hazards. Some hazards are more specific to growing crops—fungus, mold, lack of water, sunlight, or soil, over fertilization or chemical damage, disease, insect infestation, rot, damage from animals or vermin, and failure of seeds to germinate. These issues fall in line with most crops in general.
According to Mike Aberle of Statewide Insurance Services MMD Insurance Group, standard forms such as the CGL form are used and modified with endorsements and exclusions to fit the situation. Standard policy language has yet to be written specifically for the industry.
Mike stressed that the key to medical marijuana coverage is strict underwriting. Medical marijuana is a new field and insurance needs to grow and adapt with it.
Theft prevention is paramount as dispensaries are a big target. Some carriers require security cameras, steel doors, barred windows, or alarm contacts on windows that open and break sensors on windows that do not open. A safe weighing at least 1,000 pounds may be required and it may be required to be bolted to the floor. Regular cash drops to the bank are essential, as are inspected and working fire extinguishers, as well as motion detectors in the grow room and safe room. Central station alarms may be required. Some carriers require a dispensary to limit the number of patrons allowed in a store at a given time, and receipts must be kept. Most states require that dispensaries verify that they have checked the identification of the person they are selling the drug to and to maintain these records and some carriers require the same.
If it is known throughout the community that homeowners are licensed for medical marijuana use, they may become a target for theft. Increased security may be ultimately be required for homeowners coverage as well as businesses.
Exclusions for growers parallel exclusions for other crops. Exclusions for ordinance and law; fungus; poor gardening; earth movement; nuclear hazard; disease; failure of seeds to germinate; governmental action; war and military action; water; lack of water, sunlight, or soil; and animal damage are present in policies for growers.
Product liability is another issue—dispensaries will indicate a level of potency of the marijuana they have for sale; if the potency is not what the dispensary claims it is, a claim could be filed. Also, some dispensaries are getting into baked goods such as brownies, so there are product liability issues for baked goods as well. Maintaining quality control is extremely important, especially since the customers are often medically fragile.
According to Mike Aberle, product liability is a difficult area since there are not enough studies on the long term effects of marijuana; there are no proven cases that long term use killed someone the way there is with tobacco, so the risks are harder to identify. There is also the issue with infused food substances regarding whether they should be considered food or medicine. It makes the most sense to categorize any edible containing marijuana as an ingredient as a food product and not medicine; it is made the way most other food is; therefore, safe food handling procedures should be followed, and these guidelines can be used in underwriting the risk. There have been multiple cases of children being poisoned by eating marijuana products that were left within reach. In one area 73 percent of children who inadvertently ingested marijuana products required evaluation in a hospital. Ingested marijuana can take longer to take effect, and symptoms can last for several hours. Children are even more affected due to their size and weight, and the fact that many edibles contain high amounts of marijuana. This leads to hospitalization of children.
Another issue for dispensaries is auto coverage. Some dispensaries deliver marijuana to their patients, and this raises the need for dispensaries to have coverage for business autos and drivers, as well as cargo. Underwriting issues include making sure the cars are unmarked in order to lessen the risks of carjacking and ensuring the insured carries a pound or less of dried product. Carrying large amounts of medical marijuana increases the risk of carjacking and theft.
Workers compensation for dispensary workers and growers is required as well. The standard hazards exist as well as any possible injuries from working with or harvesting the plants. There is a learning curve as some growers are mom and pop operations that are unfamiliar with the state workers compensation regulations.
Medical marijuana plants do not fit under crop insurance but are being covered as business personal property. There are six cycles to the plant growth, and the insured can cover just one or all six cycles, depending on individual preference for assuming risk.
FC&S received one question from a subscriber pertaining to whether a patient's marijuana plants fall under personal property or fall under the coverage for trees, plants, shrubs, and lawns. Since the policy does not define "plant," a standard dictionary definition should be used. Merriam Webster Online defines "plant" as a tree, plant, shrub, or herb planted or suitable for planting. Marijuana is used like an herb, dried and valued for its medicinal properties. Therefore, marijuana plants should be covered under the coverage for trees, plants, shrubs, and lawns, and the per plant limit of coverage will apply. However, if they have product that is covered under personal property, it could be very expensive. Underwriting is a concern, since it is unknown how much is out there in states where it is legal, and there could be a large concentration of valuable property that is not being rated. Insureds may not think of the value of their dried product when deciding on how much coverage is needed for their personal property.
Medical marijuana is a growing industry, and insurance coverages will grow and develop with it over time. Each passing year provides more data that actuaries can use to establish rates for coverage, and as the industry grows, coverages can be tailored for the specific risks involved.
Original December 2016