28 The Self-Insurer | www.sipconline.net

The Implications

of Legalization to EMPLOYERS

The legalization of marijuana use creates intended and unintended consequences to society, as Colorado

learned in 2014. The consequences to self-insured employers, the workplace and workers’ compensation could be just as dramatic.

Government surveys indicate that 25 million Americans used marijuana within the past year, with more than 14 million doing so regularly. “Real Sports with Bryant Gumbel” reported that 50-60% of NFL players use marijuana even though the league (employer) and player’s union (employees) agreed on a zero tolerance policy. The ubiquity of use despite its illegal status, the uniqueness of its properties and the current dissonance between federal and state laws complicates workplace policies.

Written by Mark Pew, Senior Vice President of PRIUM

Marijuana

June 2015 | The Self-Insurer 29

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Whenever a subject is complicated there is an increased possibility of misunderstandings and mistakes – or paralysis by analysis. Given the momentum of cannabis legalization around the country, employers ignore the issue at their peril.

Impairment or intoxication on the job is an issue regardless of the intoxicating agent – marijuana, alcohol, cocaine, heroin and oxycodone. Setting aside the societal question as to whether legalizing marijuana is a good or bad thing, every time a substance is legalized its use increases. Typically legalization brings new users who are more apt to try something no longer illegal. Given the widespread belief that marijuana use is relatively benign, its perceived low risk will further fuel increased use.

Three primary issues can impact employers and are the sources of cascading complications:

1. Marijuana is Illegal at the Federal Level, but Legal within Some States.

Marijuana is classified as a Schedule I drug by the FDA, along with heroin, ecstasy and LSD. Per the earlier statistics on marijuana use, Schedule 1 status obviously does not hinder use, but it certainly hinders involvement by businesses. For example, drug companies are not interested in the time and dollar investment needed to bring a drug to market if the FDA cannot approve it. Banks that could be accused of money laundering do not offer their services to the marijuana industry.

In contrast, 23 states and the District of Columbia have legalized medical use of cannabis with another 11 states providing limited medical access. Colorado, Washington, Alaska, Oregon and the District of Columbia have legalized recreational use of

weed. Until the states reverse course and make it illegal again – a long shot – or the FDA or Congress legalizes it at the federal level – a very distinct possibility – this dissonance creates issues for employers, such as:

• How explicit do you need to be about recreational and/or medical marijuana use in your drug free workplace policies?

• Are pot policies different than existing policies about alcohol or other drugs? What does “zero tolerance” actually mean at your workplace?

• If you have locations in multiple states, do you need different policies in each state to take into account the unique parameters of legality?

• What happens if marijuana use in a bordering state is legal but not in your state and employees cross the borders?

• If an applicant tests positive for THC in a pre-screen drug test, can you hire them? Should you?

• What level of education do your executive team, risk management team, Medical Review Officer, managers and supervisors and employees have on your policies and their respective obligations?

2. Cognitive Impairment is Diffi cult to Measure.

A urine drug test can detect the presence of THC (the psychoactive ingredient of the marijuana plant) for three to seven days, up to 30 days for a heavy user or user with high body fat. Yet intoxication only lasts a few hours. Development of THC breathalyzers is underway, but currently it is very difficult to detect whether someone is cognitively impaired.

According to the Marijuana in the Workplace: Guidance for Occupational Health Professionals and

Employers whitepaper published in the April 2015 issue of the Journal of Occupational and Environmental Medicine, impairment peaks in about one hour and lasts up to four hours after smoking. If ingested orally in high doses, it could impair driving for up to 10 hours. Please note, these are likely outdated statistics because today’s marijuana can be as much as three times more potent than when the studies were done.

Current science can accurately detect whether a person has used marijuana at some point in the recent past, but cannot reliably detect whether he or she is impaired. The same whitepaper outlines studies based on blood levels in vehicular crashes that show a plasma level of 2 ng/mL indicated impairment with any reading above 5 ng/mL indicating acute impairment. This creates questions for employers, such as:

• When employees hurt themselves at the workplace, was it because they were impaired or just inattentive or careless? In other words, how do you confirm or deny causality due to intoxication?

• If a drug test is positive, how do your policies outline other ways to confirm impairment, i.e., slurred speech, glassy or bloodshot eyes and unusual statements?

• Can you test “for cause” based on behavior?

• Since amotivational syndrome is a probable byproduct of ingesting weed, how do you deal with absenteeism and presenteeism?

• Are there certain jobs that someone using THC-based medical marijuana should be precluded from doing for safety reasons? Are there roles in which it is ok to be intoxicated, perhaps the accountant, the cashier or programmer?

MARIJUANA LEGALIZATION | FEATURE

30 The Self-Insurer | www.sipconline.net

3. Marijuana May Have Some Medical Value.

By some estimates, 90% of marijuana studies were born from the desire to identify risks, not benefits, from its use. So it isn’t surprising that most of the studies find issues like an increased possibility of psychosis and schizophrenia and higher risks for depression and suicidal ideation. Other studies show 10% of adults and 16% of adolescents become addicted, that there is a 6-8 point decline in IQ when use begins in adolescence and continues into adulthood and that marijuana use doubles the chance of a driving accident. According to the National Institute on Drug Abuse, higher frequency of use of marijuana from ages 14-21 impacts adulthood by increasing the possibility of welfare dependence and unemployment and dramatically reducing the probability of gaining a university degree.

On the other hand, there are a multitude of anecdotal stories about how cannabis can help treat glaucoma, soothe tremors from Parkinson’s disease, protect the brain from stroke, ease the pain of multiple sclerosis and even stop the spread of cancer cells. The most publicized – and emotional – medical application of marijuana is the low THC/high cannabidiol or CBD oil, nicknamed “Charlotte’s Web,” that can dramatically reduce the number of seizures related to Dravet’s Syndrome and other forms of epilepsy.

The marijuana plant is complex with 483 known compounds. It does appear there are some medical applications for some conditions. Yet studies are conflicting, providing fodder for both proponents and opponents. The American Society of Addiction Medicine states, “For every disease and disorder for which marijuana has been recommended, there is a better, FDA-approved medication,” but what does this all mean to an employer?

• Since physicians cannot “prescribe” marijuana because it is a Schedule I drug, by what process do they certify marijuana use for medical purposes that would deem it “reasonable and necessary,” thereby making it a part of a legitimate workers’ compensation treatment plan?

• Could you, as the employer, be responsible for reimbursing the medical use of marijuana even if your policies prohibit its use? According to PRIUM’s The Sentinel quarterly newsletter published in April 2015, only Michigan, Montana, Vermont and Washington explicitly restrict payment or reimbursement by work comp payers.

• If the injured worker is a registered medical marijuana patient and tests positive for marijuana, can you terminate him or her?

MARIJUANA LEGALIZATION | FEATURE

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440.249.0863 | in fo@echohea l th inc .com | echohea l th inc .com

868 Corporate Way, West lake , oH 44145

The Only Complete Settlement Option in the Marketplace

eCHo® is the leading provider of electronic healthcare payment solutions,

serving over 50,000 erISa health plans and fully insured groups through

a single secure erISa, HIPaa and Core compliant system.

Consolidate multiple payments into one

Deliver payments and benefit statements electronically

Reward your bottom line from day one

What’s Our secret? We:

32 The Self-Insurer | www.sipconline.net

June 2015 | The Self-Insurer 33

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• What are your liabilities if an employee hurts himself, herself or others in the workplace due to cognitive impairment related to approved medical marijuana use? Are those liabilities different than if that same employee was hungover or taking prescription pain pills?

If you are an employer, legal counsel is the key to understanding the explicit, implicit and nuanced affects that marijuana legalization could have on your organization. It is entirely possible that your existing policies are sufficient. It is equally possible they are not. The only way to truly know is to research and assess. The Marijuana in the Workplace: Guidance for Occupational Health Professionals and Employers whitepaper should be required reading. This has gone beyond sophomoric jokes and academic exercises. If there are gaps in your workplace policies, they need to be filled quickly before they become gaping holes in your ability to do business. ■

Mark Pew is senior vice president of PRIUM. He is a member of the Self-Insurance Institute of America (SIIA) Workers’ Compensation Committee and can be reached at mpew@prium.net.

• According to the Tennessee

Department of Labor and

Workforce Development,

38-50% of all workers’

compensation claims are

related to substance abuse in

the workplace.

• Targeted “for cause” testing is

not random so be careful in

the terminology you use.

Who is responsible for proving

impairment or lack of

impairment in each state, you

or the employee?

• According to medical

marijuana diversion and

associated problems

in adolescent substance

treatment by Thurstone C,

Lieberman SA & Schmiege

SJ, 48.8% of adolescents

in Colorado admitted to

substance abuse treatment,

obtained their marijuana

from someone registered to

use medically.

MARIJUANA LEGALIZATION | FEATURE

MEDICAL MARIJUANA facts & fi gures