Understanding Marijuana Usage Rights at Your Outfitter

Nearly half of the country (21 states) permits the use of recreational marijuana among adults ages 21 and older, and additional 37 states have legalized marijuana for medicinal purposes. While you can now find whitewater rafting trips centered around weed, as an employer, it’s important to remember marijuana is still illegal on the federal level and identified as a  Schedule I drug  under the Controlled Substances Act.

Workplace drug utilization is not permissible and you’re within your rights to ban employees from marijuana use while on the job. Even workers who possess a medical marijuana card or are protected under the Americans with Disabilities Act (ADA) could be terminated for working under the influence. Changes in state marijuana legislation have forced employers to reevaluate existing workplace drug policies and procedures.

Cannabis Threats

Data has shown that marijuana use can elevate workplace safety risks. The National Safety Council (NSC) suggests that THC in marijuana affects an individual’s depth perception, reaction time, coordination, and motor skills and creates sensory distortion. These can be deadly to employees who are guiding travelers on expeditions or driving a commercial vehicle, among other workplace activities. The National Institute on Drug Abuse’s research found that employees testing positive for marijuana had 85% more injuries. 

Increases in Workers' Compensation Claims

Employee injuries related to marijuana use could subsequently increase your workers’ compensation claims. Some state-specific legislation has created various  workers’ compensation  employer difficulties. State legislatures are challenged to approach workers’ compensation benefits for injured employees who test positive for marijuana as there is not yet a widely recognized impairment level standard.

Marijuana can remain in an individual’s system for months. This could cause complications when determining whether an employee’s marijuana use contributed to their workplace injury. Additionally, many state courts remain undecided regarding employee medical marijuana treatment by workers’ compensation programs for occupational injuries.

Marijuana Employment Practices Liability (EPL) Exposures to Your Business

Pre-employment or post-workplace-accident drug tests are standard for many organizations. Drug testing protocols could influence discrimination allegations and subsequent  EPL claims  if employees face workplace consequences from positive medical marijuana test results. 

In response, some states have enacted legislation restricting an employer’s ability to perform marijuana testing. Several states have also enabled specific employment protections for authorized medical marijuana cardholders to prevent potential discrimination. 

Minimize Your Outfitter's Marijuana-Related Risk

Despite the challenges created by marijuana legalization, several measures can minimize your outfitter’s exposures:

• Educate employees about workplace safety risks associated with marijuana usage. 
• Adopt an appropriate marijuana usage policy to prevent job impairment issues and provide employees with proper support. Your policy should:
  • Establish a zero-tolerance approach for safety-sensitive positions.
  • Outline marijuana workplace usage reporting procedures.
  • Define acceptable legal marijuana use (e.g., outside of work hours).
• Train managers to detect and respond to potential marijuana-related workplace impairments. 
• Provide workers with access to an effective employee assistance program (EAP) to aid those with marijuana-related drug abuse challenges.
• Partner with legal counsel to:
  • Verify your workers’ compensation program complies with all federal and state-specific legislation as it pertains to employees’ marijuana usage.
  • Certify your outfit. is compliant regarding workplace-injury employee benefits when workers test positive for marijuana.
  • Verify your business is observing all laws of workers’ compensation reimbursement for medical marijuana treatment.
  • Determine whether workplace marijuana drug tests and/or basing employment decisions on an employee’s marijuana usage are compliant with any applicable federal and state-specific legislation. 
• Update drug testing protocols and related employment practices when necessary. 
• Inform employees promptly when marijuana-related workplace drug policies, procedures and program offerings change.
• Verify compliance with testing policies if your company operates in multiple states. 
• Educate employees about the outfitter’s marijuana-use policy and the repercussions for failed tests, including random, post-accident or reasonable suspicion tests.

Less than half of businesses have a written cannabis policy. While the views regarding marijuana are more favorable than ever before, clear policies and education can help limit usage while on the clock. Create and review your drug policy with state regulations in mind to ensure that you are not violating any nondiscrimination laws. Some states prohibit employers from discriminating against employees who test positive for medical marijuana, provided the patient is not impaired at work. In general, though, employers may discipline employees according to established drug policies that prohibit workplace use of marijuana or impairment due to marijuana.

We’re Not Just Blowing Smoke About Our Coverage

Marijuana legalization is an active and rapidly evolving compliance landscape. Remaining compliant with medical marijuana laws can be frustrating as federal and state legislation often conflict. Without the proper knowledge and coverage, your outfitter could be at risk. If you have additional questions about medical marijuana risk or if your business is properly covered, connect with a  CBIZ Adventure Sport Insurance  team member today.

This blog may contain scenarios that are provided as examples only. Coverage is subject to the terms, conditions and exclusions of the policy issued. The information provided is general in nature and may be affected by changes in law or the interpretation of such laws. The reader is advised to contact a professional prior to taking any action based upon this information.

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