Colorado’s Medical Marijuana Laws and Workers’ Compensation

In 2000, Colorado voters passed Amendment 20, a comprehensive measure meant to allow the lawful use of medical marijuana for those suffering from certain conditions. Along with Colorado, 33 other states have approved similar legalization schemes. Yet, while many states are moving to legalize medical marijuana, federal law prevents doctors from prescribing it. The complicated relationship between state law, federal law and medical marijuana raises a plethora of questions. One of the primary emerging issues is how medical marijuana can fit into the workers’ compensation framework.

Many injured workers are uncertain about their rights, and employers are equally confused about their obligations to users of medical marijuana. While there are some clear answers, many questions remain to be tested, either in the courtroom or the capital.

The Basics of Amendment 20 and the Workplace

Medical marijuana is quickly becoming a pervasive issue in Colorado workplaces: the Colorado Department of Public Health and Environment, the agency charged with distributing medical marijuana cards, receives around 400 card applications daily. Although thousands of Coloradans are obtaining medical marijuana cards every year, the law is not yet clear on what accommodations employers must make.

One thing that is certain is that a medical marijuana card does not entitle an employee to use marijuana at work: employers are not required to allow for medical marijuana use on the job, nor are they required to allow a worker to be under the influence of marijuana while working. In fact, the Colorado state workers’ compensation statute imposes a penalty of 50 percent loss of wages/benefits if an employee is injured as a consequence of being impaired by medical marijuana.

There is an exception to the penalty for injuries resulting from physician-prescribed drugs, but it technically does not apply to marijuana, as marijuana cannot be prescribed under the federal Controlled Substances Act (Colorado doctors can advise marijuana use, but cannot write a marijuana prescription). Of course, testing rarely takes place unless there is an actual workplace injury.

Colorado courts have not yet addressed whether an employee with a valid medical marijuana card can be terminated or face other consequences for arriving at work with detectable amounts of marijuana in his or her system. It is also unclear whether an employee terminated for such use outside of working hours can raise a legal claim against his or her employer. Given that federal law recognizes possession of marijuana as a crime, courts in other states with legalized marijuana have found that employers are not required to allow use even outside of work, leaving terminated workers with little recourse. However, since the legalization scheme in Colorado arises out of an amendment to the state constitution, it may be given more weight than statutory medical marijuana laws.

Other Workers’ Comp Concerns

In Colorado, the law does not require insurers to pay for medical marijuana. Additionally, setting reimbursement amounts is difficult for homegrown medical marijuana. A further challenge is presented if an employer or insurance provider is from a state that does not allow for medical marijuana use: although not required to, if they choose to pay for a Colorado employee’s medical marijuana, would they be in violation of that state’s laws or federal law?

The answers are far from clear, and new questions are constantly arising. Some experts are recommending that employers and workers’ comp authorities should move toward treating medical marijuana more like routinely prescribed controlled drugs. This would allow the insertion of medical marijuana into an already proven workers’ compensation system. But, federal resistance could impede an orderly transition.

Employer Control and Unanswered Questions

At the moment, rather than government mandates, employer-set policies seem to have the most control over how medical marijuana is handled in the workplace. Perhaps a good system of employee-employer communication and understanding underlies the relative lack of legal action in Colorado relating to medical marijuana and workers’ comp. Ultimately, most workers’ compensation issues concerning medical marijuana remain to be tested in Colorado courts, providing a unique window of opportunity for injured workers looking to flex their legal muscles.

Only time will tell when, if, and how medical marijuana will fully integrate into the workers’ compensation system in Colorado. Until then, a wide swath of uncertainty in the law will unfortunately be the status quo for employers and marijuana-card carrying employees who are facing both workplace injuries and chronic medical conditions.

It can be difficult for an entire legal system to catch up to just one legal change. An example of that point is marijuana and workers’ compensation laws in Colorado. Adults can smoke marijuana legally, even for simple recreational purposes, but that doesn’t mean that all the laws are on their side if they have the drug in their system.

What if a worker is injured in Colorado and it’s discovered that he or she has marijuana in their system? How might an employer react, and could the presence of the substance in an injured worker’s system impact their rights to compensation benefits?

The widow and children of a Colorado ski worker are facing the cruel reality of exactly this situation. The worker, Adam Lee, was crushed to death under a ski escalator at Loveland Ski Area in December 2017. Ordinarily, the worker’s dependents would be entitled to the full amount of death benefits prescribed by law, to be paid by the employer’s workers’ compensation company.

But an autopsy revealed a high level of THC in Mr. Lee’s body. The insurance carrier, Pinnacol Assurance, is using this as a means of reducing the amount of death benefits it is paying to Erika Lee, the widow of the dead ski worker. Though Ms. Lee has been receiving monthly payments since the claim was approved, she is receiving $800 per month less than she would had her husband’s body not tested positive for marijuana. Since death benefits are paid to a widow or widower for life, the total amount of lost benefits will be considerable over Erika Lee’s lifetime.

Erika Lee is currently appealing the case to the Colorado Department of Labor. With the help of an attorney, she may yet receive the full amount of death benefits.

Measuring THC in the Body Presents some Challenges

The Colorado workers’ compensation system is a no-fault insurance program. Even when an employee is responsible for a work accident or when the employee’s actions contribute to an accident, he or she is still entitled to workers’ compensation benefits. However, Colorado law allows an insurance carrier to reduce benefits by up to 50 percent when traces of marijuana or any other controlled substance are present in the worker’s body at the time of the accident.

But there are two big problems regarding marijuana that toxicologists have yet to solve:

· THC, the psychoactive chemical found in marijuana, can stay in a person’s system for days or even weeks after it is ingested.

· When traces of THC are found in a person’s body, there is no way to determine whether the worker was really impaired at the time of the accident.

Until the Colorado Legislature addresses this issue, injured workers who have indulged in marijuana will continue to face the possibility that their work comp benefits could be reduced.

Marijuana Industry Continues to Develop Safety Rules for Workers

As in all other industries, employees in the marijuana industry deserve to be safe in their workplace environments. Although it has been legal to use marijuana for recreational purposes since 2012, safety regulations in this industry are only now receiving attention. Injured workers in the marijuana industry have the same rights to workers’ compensation benefits as those with other injuries have.

Alongside the existing safety regulations of the Occupational Safety and Health Administration, the Colorado Marijuana Occupational Health and Safety Work Group created a supplementary guide to protecting employees within the industry. While these workers face the more common hazards such as falls from slips and trips, more industry-specific injuries must be anticipated. The risk of suffering fatal injuries in explosions or fires is high.

Reporting and recording rules for on-the-job injuries in the marijuana industry will apply to all retail, testing and cultivation facilities with more than 10 employees. Due to the current lack of regulation, there is no clear picture of the safety and health of workers in this industry. Records only show three instances in which marijuana-processing companies received citations for safety violations since 2012.

With proper regulation, injured workers in the marijuana industry in Colorado will now have the same rights to workers’ compensation benefits as employees in other industries have. They can file benefits claims to cover medical expenses they have incurred, and even the costs related to traveling to and from the doctor or hospital might be compensated. Also, benefits will include wage replacement for workers whose injuries caused temporary disability.