Part 1 of 2
With increasing numbers of people working in our sector, many things have changed with the way employers and insurers must address the possible use of cannabis while working — whether injured or not. We all know about people who work in alcohol-related fields because they want to be near, use and maybe pilfer the product. This issue is exactly the same for cannabis products, and maybe worse because of the value, scarcity and transportability of weed.
Now that 13 states have legalized rec canna, and 33 medicinal, there is more product available at a higher level of potency than what is bought on the street from the cartels. This new cannabis is totally pure with higher levels of THC than ever available before. If an employee is a potential user and comes to work with stolen/bought product, is high, and then has an accident while working or delivering goods, what will worker-comp carriers do? Will they provide benefits or not? And can they ask employers to conduct urine tests on all employees before providing benefits?
The RAND Corporation, a huge California think tank, conducted research on this within several industry segments suggesting that at-work and off-work impairment will result with THC ingestion, including compromised motor and cognitive skills. But the extent is limited to the intensity of the THC consumed and the employee’s ability to tolerate and function while “high.” Their conclusion is that if an employee is a user outside of work and seems to function at a high level while working, then there is no need to dismiss or test that person. (Remember, this only applies to recreational and not medicinal, which has a very, very low level of THC and is legal in all 50 states since Mitch McConnell got that bill through the Senate.)
The Journal of Health Economics believes that worker comp claims have been reduced after medicinal was passed. Presumably this is because people function better with less debilitating injuries as their pain subsides: a known benefit of medicinal.
Many worker compensation issues issue arise from these new developments with the cannabis plant: among them:
- Should insurance reimburse an injured worker who has medicinal prescribed for him/her after a workplace injury?
- Will the state compensation department/legislature resolve this?
It is too early to know. All of us in the canna-comp insurance business know that workers compensation statutes are established state by state, are all different, and so different coverages for multi-state cannabis employers must be written into the policies. There recently was a case in New Jersey where an opiod-addicted employee was put on medicinal after not being able to work with his pain. A liberal judge said that the cost of medicinal should be paid by the carrier, and comp benefits paid if the employee could not function at work. The employer appealed and is still awaiting a decision.
As of October 2020, only 6 states hold that medicinal is reimbursable under workers compensation statutes. The ultimate issue is whether or not employers have the right and authority to conduct random urine analysis tests if they suspect use. Truth is, the rate of positive tests has gone up in the last two years, largely because of regulations being eased and more availability whether by theft or legal purchase.
There is much more to learn about this subject. In the next issue we will discuss options employers have after a post-accident event with a positive test for use of cannabis and how COVID-19 has affected worker comp benefits.
P.S. We wrote about cyber coverage in our last issues, and recommend watching this short video for more information: