Workers’ Compensation Questions on Marijuana Legalization

Proposition 64, the California Marijuana Legalization Initiative, has legalized personal, recreational use of marijuana. Many of the related regulations go into effect January 1, 2018. We want you to know that Proposition 64 carved out several areas of state law which remain unchanged in California that impact your employment policies and workplace safety:

• Prop. 64 does not prohibit or preempt the rights and obligations of public and private employers to maintain a drug-free and alcohol-free workplace.
• Prop. 64 does not require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace.
• Prop. 64 does not affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees, or prevent employers from complying with state or federal law. Please note that marijuana is still an illegal substance under federal law.
• Prop. 64 does not change laws making it unlawful to drive or operate a vehicle while smoking, ingesting, or being impaired by marijuana or marijuana products. Possessing an open container or open package of marijuana or marijuana products in a vehicle is still illegal.

We recommend that you review your related employment policies and practices for the safety of staff and students, and ensure you enforce your policies without discrimination. 

Workers’ compensation is another important area to consider in relation to Prop. 64. It is important to understand that Prop. 64 does not prohibit or preempt laws providing that it would constitute negligence to undertake any task while impaired from smoking or ingesting marijuana or marijuana products. Legalization does not change the determination of compensability of a workplace injury when marijuana intoxication or impairment causes an accident. In California, however, it is not a presumed cause when the substance is present, and the employer does have the burden to prove intoxication. 

Questions also remain about whether a workers’ compensation payer will have to reimburse a claimant who is prescribed marijuana for treatment in the future. The current law in California, Health & Safety Code Sec. 11362.785(d), provides that a private health insurer cannot be forced to pay for medical marijuana. This provision is being applied to workers’ compensation insurers as well, and a 2013 court case upheld the exemption. But if experience is any indication, we can expect to see further legal action from injured workers to be reimbursed for marijuana. 

To learn more about Prop. 64 check out our recent Briefing.