By Ashley Rudolph, Legal Intern, and George Waters, Partner, Atlanta

Medical marijuana continues to be a hot topic and an emerging area of the law. While at the federal level marijuana is illegal for both medicinal and recreational purposes, state governments are beginning to take a different stance. Currently, thirty states now recognize medical cannabis, and nine states recognize recreational uses of cannabis.

The permissible level of tetrahydrocannabinol (THC) and cannabidiol (oil) varies among states. In addition, some states regulate the conditions for which medical marijuana can be prescribed. Georgia only allows the use of medical marijuana in the form of cannabis oils with below 5% THC and at least an equal amount of CDB, and it can only be prescribed for end stage cancer, Alzheimer’s, multiple sclerosis, seizure disorders, Crohn’s, mitochondrial disease, Parkinson’s, and Sickle Cell disease. It is extremely unlikely to bleed over into workers’ compensation.

In other states, the increased legal uses of marijuana impact the reimbursement of insurance companies; however, the extent of the effect on insurers from medical marijuana legalization depends on the statutes in the particular state. With respect to workers’ compensation, only five states (New Mexico, Maine, Minnesota, Connecticut, and Massachusetts) permit reimbursement for legal medical cannabis. Whether or not an insurer is required to reimburse for medical marijuana depends greatly on the actual wording of the state statute.

Besides reimbursement, these new statutes may affect the application of an employer’s drug policy. In Coats v. Dish Network, L.L.C., 2013 COA 62 (Colo. Ct. App. 2013) , the Colorado Supreme Court held that the employee failed to show a claim for wrongful discharge after failing a random drug test at work, despite the legal use of medicinal marijuana by the employee. There has been no private cause of action for terminating an employee for violation of an employer drug policy. It appears that it is unlikely that enforcing drug policies in the work place will not be trumped by state law using medical marijuana.

Employers are not required to allow marijuana in the workplace, but the employee’s off duty use could create a conflict if the effect of ingesting marijuana impacts an employee’s performance of regular job duties. Under the Intoxication Defense in most states, an injury is not compensable if the employee was under the influence of any drugs not prescribed by a doctor at the time of the accident. That is the state of the law in Georgia.

Despite the varying legislation and litigation at the state level regarding medical marijuana policy, the federal maintains that marijuana is illegal for any use. This federal policy has impacted some claims positively, but in other states, it has had no effect at all. Until there is further legislation at the state level, the states will continue to decide these issues within their individual systems. However, the current trend is that medical marijuana will not override a company’s rules regarding a drug free work place and terminations in light thereof. It also appears that only in a few states will the workers’ compensation carrier be required to pay for the prescribed marijuana.