If you’re an employer confused by how the workplace should deal with medical marijuana, be prepared to be even more confused because a New Mexico court ruled that pot can be covered under workers compensation.
“Turning to the reimbursement issue first, the Court noted that the New Mexico Workers’ Compensation Act requires an employer to provide an injured worker ‘reasonable and necessary health care services from a health care provider.’,” wrote employment lawyer Gerald Waters, who breaks down the ruling for the Drug & Alcohol Testing Law Advisor.
The court decided that medical marijuana was on par with prescription medication for Gregory Vialpando, who was almost permanently disabled when injuring his back on the job. While there isn’t a wave of similar cases in other states, it highlights the complications between federal law and state pot laws.
The employer was unsuccessful in arguing that because federal law prohibits all marijuana use, reimbursing would be the same as committing a federal crime, according to Waters.
First, the Court stated that the employer did not challenge the legality of the Compassionate Use Act and did not identify any federal statute that it would be forced to violate. Next, the Court rejected the argument that reimbursing Vialpando would violate public policy. The Court noted that the “Department of Justice has recently offered what we view as equivocal statements about state laws allowing marijuana use for medical and even recreational purposes,” and further noted that the Department of Justice has stated that it would defer its right to challenge laws in Colorado and Washington legalizing possession of marijuana.
Prosecuting personal marijuana use and possession is no longer a priority for the federal government even though the drug remains illegal as a Schedule 1 narcotic. With Colorado and Washington completely legalizing pot and 18 other states, plus the District of Columbia, allowing medical marijuana, employers are left to navigate between state and federal law, and employees’ off-the-clock lives.
“If employers are not allowed to take adverse employment action against an employee for use of medical devices and/or medications, then why should the use of legitimately prescribed marijuana be any different?” writes labor lawyer Jonathan Ash for New Jersey Human Resources.
Most states allow for people to fired when testing positive for marijuana usage even if the drug was legally obtained. The New Mexico case was the first of its kind, but it doesn’t afford any job protection to legal marijuana users. While that court decided that state law was in line with federal laws, the Colorado Court of Appeals decided the opposite, explains employment attorney Michael Groebe in the Labor & Employment Law Perspective:
The Court of Appeals concluded that since marijuana use remains unlawful under federal law (for medical purposes or otherwise), off-duty medical marijuana use is not protected as “lawful activity” under Colorado’s Lawful Activities Statute. Thus, the employer lawfully discharged the former employee for off-duty use of medical marijuana even though the use was pursuant to Colorado’s medical marijuana law.
While the majority of Americans believe that pot should be legalized, employers don’t want to deal with the liability of of having a worker high on the job or being unable to maintain a drug free workplace.