At the 2015 National Council of Self-Insurers conference, Gregory Cairns from Cairns & Associates discussed the emerging legal issues associated with marijuana. Greg is an attorney from Colorado where recreational marijuana became legal in 2014.
Currently, 23 states and DC allow medical marijuana.Washington, Oregon, Alaska and Colorado now allow recreational use of marijuana. Since federal law still classifies marijuana as illegal, there is case law that indicates the federal government can prosecute marijuana dispensaries. In 2011, the DEA closed down some medical marijuana dispensaries that were located within 1,000 feet of schools. However, for the most part, the federal government is taking a hands-off approach in states that have authorized medical marijuana.
One of the big challenges around legal marijuana is with the edibles. Fifty percent of the marijuana sold in Colorado is in edible form. There is concern around how the edibles are regulated because there is no control over the concentration of marijuana in these items or what constitutes an appropriate dose.
Cairns presented questions associated with the risk management of marijuana:
- Can municipalities manage risk by zoning? Yes, cities and states are using zoning to control where marijuana dispensaries are located.
- Can municipalities manage risk by licensing? Yes, states license the marijuana dispensaries.
- Can municipalities tax medical marijuana? Yes, and this has become a source of revenue for municipalities – especially in states where recreational use is now legal.
- Are there special enforcement issues for law enforcement regarding medical marijuana? Public usage is usually banned by state law, but is not strongly enforced. Law enforcement needs to focus on impairment, not possession of marijuana. Marijuana arrests have increased in states adjacent to those that allow recreational marijuana.
- Does a private health insurance carrier, etc., have to reimburse for medical marijuana? No, healthcare companies set their own drug formularies. In many states, there is specific law that prohibits marijuana from being reimbursed under health insurance.
- Does a workers’ compensation carrier or self-insured employer have to pay for medical marijuana? There is a New Mexico case where a judge ordered a workers’ comp carrier to reimburse for medical marijuana. It has also been allowed in California.
- If an employee is injured while under the influence can the employer pursue a benefit reduction? This depends on the state but, for the most part, the employer has to prove that the marijuana was the proximate cause of the injury.
- Can an employer terminate someone “for cause” because of medical marijuana in their system? This has been allowed under federal employment law because it is still illegal under federal law.
- Does an employer have to accommodate the use of medical marijuana in the workplace? No. He cited Coats vs. Dish Network, which is a case currently before the Colorado Supreme Court on a person who was terminated for using medical marijuana. The challenge is based on Colorado law, which states that an employer cannot terminate someone for doing something away from work that is legal.