Recreational Marijuana and Workers’ Compensation: What Employers Need to Know

Legal recreational marijuana use by your employees will affect workers’ compensation claims. Is your HR team prepared to handle it?

On Jan. 1, 2020, when Illinois legalizes recreational marijuana use by residents 21 years old or older, it will join 10 other states that have already enacted similar legislation­—Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, Washington, and the District of Columbia, the Northern Mariana Islands, and Guam. Laws in other states vary fairly wildly, from legislation that permits marijuana use for medical purposes only to guidelines that focus solely on CBD and THC content to the decriminalization of possession or what’s permissible for transportation and cultivation.

Nevertheless, times have changed. The only states and U.S. properties that currently do not permit any marijuana use/possession are Idaho, South Dakota, and American Samoa, and that means employers throughout the U.S. need to update expectations, job requirements, and the way they handle workers’ compensation as it relates to marijuana intoxication.

Marijuana Law Amendments for Employer Protection

The original Illinois law—called the Illinois Cannabis Regulation and Taxation Act­—has gotten most of its attention for its provisions regarding use and possession. Of less interest to marijuana users and more interest to employers, of course, is the part of the Act that allows employers to enforce zero-tolerance policies for employees who are on the clock or on call. Additional concerns about employer liability for enforcing marijuana-related policies led to the creation of an amended bill that is expected to be signed into law on Jan. 13, 2020, or sooner.

Once amended, employees will not be able to sue their employers for “actions taken pursuant to an employer’s reasonable workplace drug policy, including but not limited to subjecting an employee or candidate to reasonable drug and alcohol testing, reasonable and nondiscriminatory random drug testing, and discipline, termination of employment, or withdrawal of a job offer due to a failure of a drug test.”

The most difficult part of enforcement for employers, though, especially after an incident or accident, will be proof of the employee’s intoxication. There is still no standard of a “legal limit” or standard method for measuring impairment. That burden of proof will fall on the employer after the fact, which means drug screening and employee vetting at the time of hiring may be the most crucial element to effective drug policy.

Avoid the Fight Against a Marijuana Use-Related Workers’ Comp Claim     

Let ClearStar propel your business with a drug screening program for the modern age. Our experienced, specialized background screening teams and tools can help you hire with complete confidence no matter the changing legal landscape.

At ClearStar, we are committed to your success. An important part of your employment screening program involves compliance with various laws and regulations, which is why we are providing information regarding screening requirements in certain countries, region, etc. While we are happy to provide you with this information, it is your responsibility to comply with applicable laws and to understand how such information pertains to your employment screening program. The foregoing information is not offered as legal advice but is instead offered for informational purposes. ClearStar is not a law firm and does not offer legal advice and this communication does not form an attorney client relationship. The foregoing information is therefore not intended as a substitute for the legal advice of a lawyer knowledgeable of the user’s individual circumstances or to provide legal advice. ClearStar makes no assurances regarding the accuracy, completeness, or utility of the information contained in this publication. Legislative, regulatory and case law developments regularly impact on general research and this area is evolving rapidly. ClearStar expressly disclaim any warranties or responsibility or damages associated with or arising out of the information provided herein.