Recreational marijuana is now legal in multiple states and will likely be legalized nationally soon. Which means that the percentage of impaired workers in the US workforce will rise, leading to more workplace injuries and accidents. In this two-part series, we will examine the impact the legalization of marijuana will have on the workers’ comp industry. In the first part, we will look at increased workplace accidents and current diagnostic testing practices. In Part Two, we will discuss diagnostic testing on the horizon and the compensability of medical marijuana.

Increased Workplace Accidents

Safety concerns are generally why many companies prohibit the use of marijuana. Workers who show up under the influence of marijuana—medicinal purposes or not—may be putting themselves and others at risk. However, research remains mixed on the subject and some studies have found associations between marijuana and work absenteeism, workplace accidents, and unemployment while others found no association. The Alcohol Drug Abuse Institute reports that marijuana:

•     Causes short term memory loss
•     Impairs body movement
•     Causes the user to have difficulty thinking
•     Decreased concentration
•     Slows motor coordination
•     Impairs reaction time
•     Decreased attention span

The acute effects of marijuana last around six hours and can be harmful if you are a worker trying to operate heavy machinery, drive a vehicle, or many other simple tasks that requires energy. The National Drug Institute reports that employees associated with substance use are more likely to be involved in a workplace accident and potentially harm others, and more likely to file a workers’ comp claim.

Current Marijuana Impairment Testing

When discussing the legalization of marijuana, one of the main barriers for almost everyone is there is no reliable tool that can detect the degree of impairment in the moment, such as an alcohol breathalyzer can. Marijuana is highly detectable using hair follicle, urine, and saliva, for many weeks, but there is no indication for approximate level of impairment or whether the person ingested the substance three hours ago—or three weeks ago.

Employers are within their rights to prohibit the use of marijuana in the workplace—whether cannabis use is legal in that state or not. Even for a state like Colorado, who legalized the recreational use of marijuana years ago, they follow a statute that limits financial benefits in workers’ compensation if you test positive for marijuana or any other controlled substance. In that state, you can lose 50% of your income replacement benefits if marijuana is detected in your system. Georgia has a very limited allowance for the use of marijuana. In fact, it only allows the use of marijuana oil for specific conditions although that list was expanded in 2017. One important point is that Georgia law does not give doctors permission to prescribe the drug, only to authorize its use.Current Georgia law maintains that no compensation be allowed for a worker if he or she was under the influence of marijuana (tested positive within eight hours of the accident). If you test positive within the eight-hour time frame it will be presumed you were intoxicated, even if you ingested the substance two weeks prior. With that said, just because you tested positive for marijuana does not automatically make your claim invalid. If you were not actually impaired during the accident, it is up to you to prove that the positive test played no role in the accident. If this happens, you must consult a workers’ comp lawyer immediately.

In Part Two of A Legally Impaired Workforce: How Legalizing Marijuana Effects Workers’ Comp, we will look at new diagnostic testing for marijuana on the horizon and the compensability of medical marijuana nationally and in Georgia.