MARIJUANA AT WORK
The Marijuana
Issue At Work
H
ere in New Jersey there is
much talk and “noise” about
the coming recreational
legalization of marijuana. If
there is one thing that most
people in the United States have learned
over their lifetimes, it’s that you shouldn’t
show up to work under the influence.
Drug tests are a standard part of many
job screenings, and positive results would
traditionally rule out any possible drug
users, including those who are partaking
in marijuana. So what happens now that
legalization of marijuana is expanding
across the nation with New Jersey soon to
follow? How will workplaces reconcile the
current laws—some of which seem to be
contradictory—with their traditional and
standard policies on this issue?
Whether it is stated directly or simply
implied, most everyone understands that
employers are responsible for individuals
who are employed on their property and
who are acting under their authority.
Thus, employers have the right, should
they so choose, to put drug policies in
place. It is essential, however, that they
have a documented cannabis policy that
can mitigate some of the risks they might
become exposed to due to the new laws
and regulations. This isn’t done to exclude
employees who use marijuana; it is done to
protect the business from potential negative
consequences of that use.
Businesses are responsible, first and
foremost, for the protection of their own
interests, employee safety and customer
safety. Cannabis use can impact your
workers compensation experience mod
as well as your third-party liability
exposures. The flip side to this is that
medical marijuana issues could potentially
be argued as a health-and-safety issue for
employees who have prescriptions. Right
now, businesses are able to prohibit the
use of alcohol during work hours. They
can also prohibit employees from showing
up to work under the influence of alcohol.
In the same way, they can have firm
and consistent zero-tolerance rules for
marijuana. The difficulty here is a question
of individual state regulations.
Recently, on the umbrella liability policies
that our company issues, we have started
to see Cannabis Items and Activities
Exclusions. We haven’t yet seen them for
all states that allow both medical and
recreational use, but it’s only a matter
of time before we do. I suspect that
some companies are currently relying
on “other language” in their exclusions
to restrict coverage: language such as
use of controlled substances, contraband
and criminal or illegal acts. The recent
Cannabis exclusion I read specifically states
the terms of this endorsement apply even
if “cannabis activities” and the possession
of “cannabis items” are legal or permissible
under the law of the state in which the loss
or damage occurs.
With new rules coming into place every
day, different laws in different states,
and marijuana still illegal at the federal
level, it is almost like walking through a
minefield when determining what is and is
not legal in terms of the use of marijuana
and what will or won’t be defended under
your insurance contracts. In California,
for instance, a federal district court ruled
that it doesn’t violate California workplace
discrimination law to fire employees for
marijuana use regardless of the reason they
are using it (thus including medical use).
That issue is compounded even further
for companies that have federal contracts.
Federal contractors must abide by the
Federal Drug-Free Workplace Act which
prohibits the use of marijuana. Employers
who don’t follow this restriction can lose
their ability to bid on and receive federal
contracts.
So what are employers to do? How can they
navigate these issues and still maintain
high employee retention rates and
productivity? These questions are tough,
but have to be answered in the wake of
constantly changing regulations. For legal
advice, I recommend that you contact your
employment counsel now so that you have
a plan in place once legalization is finalized.
For additional insurance information,
contact [email protected] for a
consultation about what exclusions may
apply and what your workplace can do
regarding its marijuana policies to mitigate
your risks. +
Ken Hager began his insurance career more than 30 years
ago at JGS Insurance. Ken’s current role as Chief Operating
Officer at JGS began in 1997. Since that time he has been a
guiding force in the direction and success of the JGS enterprise.
Throughout the years, Ken has remained engaged with his
customers and keenly focused on their needs. He intently
understands the risks associated with his clients' operations
and has been uniquely able to offer them superior solutions
to their business needs.
BY: KEN HAGER, AAI, CIRMS
PRINCIPAL
JGS INSURANCE
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