Complications for HR

The legalization of marijuana not only ignites legal and political questions, but does so for everyone who owns a business in states where pot is now prohibited. Until the federal law is changed, employers in states that allow some form of marijuana use are caught in the unique legal limbo that's created when state law allows something and federal law prohibits it.

Only four states — Arizona, Delaware, Minnesota and Rhode Island — provide any level of legal protection for employees who are prescribed medical marijuana, and Arizona and Minnesota's laws offer the strongest protections for employees.

"You cannot force an employer to accommodate an illegal activity, and marijuana remains illegal under federal law," says Valerie Samuels, an attorney with Posternak Blankstein & Lund LLP in Boston and co-chair of the firm's employment law group. "As long as it's illegal under federal law, employers won't have to accommodate it. And under federal law, if an employee is fired for having marijuana in his or her system, the employee would have no recourse."

One of the biggest problems for employers when it comes to marijuana is that, unlike alcohol, there's no way to gauge impairment through a scientific test; daily marijuana users — which many medical users are — will have a much higher tolerance for the active chemicals in marijuana than will those who only use it occasionally.

All in all, communication between employers and employees is key, experts say.

"It's a good idea to tell your employees how you're going to handle the issue," Urban says. "Employees in states like Colorado and Washington are shocked to learn that they could lose their jobs for testing positive. So it's a good idea to tell your employees, 'By the way, this is our policy. You'll be tested for these reasons on these occasions, and if you test positive, this is what will happen.'

For carriers and insurance

Though the legalization of recreational marijuana immediately causes action — and complications — by businesses and HR managers, it has less immediate impact on insurance and premiums.

At least so far, the fact that millions of Americans now have access to legal weed has generally sparked no discussion or changes in the questions people are asked when they sign up for coverage, experts say.

"It's had no impact on our policies toward health insurance, nor are we discussing any aspects of that. It's a nonissue for us," says Neil Waldron, chief marketing officer and vice president of strategic initiatives for Rocky Mountain Health Plans. "The only [time we would make a change] is if there were a regulation to come out at the state level or at the federal level related to how health insurance is or is not to be provided to people who smoke marijuana. We don't currently have a policy, and if you smoke marijuana we don't even know that, nor do we ask that."

The Colorado Uniform Application for Small Group Health Plans, which is used by most providers in the state, does ask about illegal drug use as part of a question that also asks about alcoholism and chemical dependency, but Vincent Plymell, communications manager for the Colorado Division of Insurance, says there are no plans to change the question to clarify that marijuana is no longer an illegal drug under state law.

Carriers and medical marijuana

While legal marijuana is, so far, a nonissue with carriers, medical marijuana — now legal in 20 states — is facing an identity crisis of its own. Still illegal under federal law, medical marijuana is not covered by any health insurance plans, says Susan Pisano, vice president of communications at America's Health Insurance Plans.

"Marijuana is still considered a schedule 1 drug under the controlled substance act,' Pisano says, "which means that, according to their definition, there is no recognized medical use and a high potential for abuse."

Additionally, Pisano said there continues to be concern about a lack of evidence about the benefits of medical marijuana as well as concern about its potential harm.

One area in which medical marijuana is given at least tacit approval is life insurance. Most carriers charge nonsmoker rates to those who use marijuana occasionally, and a smoker's rate for those who use it more than once a week.

HR and medical marijuana

In questionable workplace situations that involve medical marijuana, employers might be confused about what they are and are not required to accommodate under the Americans with Disabilities Act.

"Under the ADA, there is no obligation to accommodate marijuana use," explains Urban, an employment attorney with the Fisher & Phillips law firm in Denver, "even if someone has a disability and a health care professional has said the employee might benefit from the medical use of marijuana. As an employer, you are free to have a zero-tolerance policy, with some exceptions, such as states like Arizona and Minnesota."

Minnesota's law states that as long as employees aren't using or impaired at work, they are protected from losing their jobs for testing positive for marijuana if they are a medical marijuana patient; Arizona's law states that as long as medical marijuana patients are not impaired at work or employed in a safety position, they are protected from losing their jobs from testing positive for marijuana use.

The new tobacco?

Some doctors believe that pot use eventually will need to be discussed in the same breath as tobacco use. Philadelphia-area physician Bindu Kumar, in a January op-ed in Philadelphia magazine, cited educational campaigns around tobacco use and their effectiveness in stopping kids from smoking.

"I'm not equating tobacco to pot," she said, "but there are clearly still health issues that can arise."

Kumar also wrote about the potential risks pot present in the workplace, for example: "an employee shows up to work high on marijuana, with visibly impaired judgment and makes a catastrophic error that leads to harm. Are we OK with this? Of course not — it's no different than alcohol-related incidents," she said. "However, all this talk about legalizing marijuana has to be balanced with an ongoing discussion about its possible impact on concentration, judgment, memory and reaction time — all of which can be impaired with use.

"We can't just think of the recreational enjoyment," Kumar said. "Employers need to factor this issue in to their human-resource policies; physicians will need to consider marijuana usage similar to alcohol when assessing their patients; and public-health officials will have to re-brand their tobacco campaigns to include pot."