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California Aims to Prevent Marijuana-Use Discrimination: Start of a Trend?


If this bill passes, medical marijuana users in California will be classified as a protected class and employers will be unable to discriminate against them because of their marijuana usage.

While the California Supreme Court has made it clear employers do not have to accommodate medical marijuana use, AB 2069 would prohibit employers from discriminating against workers based on their status as card-carrying medical marijuana user by placing them in a protected class.

The legislation would amend the current definition and prohibit discrimination based on "race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender identity, gender expression, age, sexual orientation, or military and veteran status."

The bill passed a Committee vote, but is currently on hold as lawmakers look to tweak the language of the legislation.

The new role of marijuana

Legislation to ban marijuana-use discrimination is part of a growing trend of general acceptance for the substance that was once a workplace taboo.

In fact, many believe it is only a matter of time before we see medical marijuana as part of prescription drug plans.

Their reasoning: A total 29 states (including Illinois, Minnesota) and the District of Columbia have legalized medical marijuana and a slew of others have taken it a step further and voted to allow the recreational use of the substance.

Plus, in light of the opioid crisis, many see medical marijuana as a safer alternative to opiates because it does not carry the risks of overdosing.

All of these factors are leading some experts to surmise that medical marijuana will be a reimbursable option in employers' prescription drug plans in the near future.

Why it could happen

According to Michele Hibbert-Iacobacci, head of information management and support for Mitchell Casualty Solutions in San Diego and the co-author of a white paper that covers medical marijuana reimbursement, the marijuana industry has the momentum to make prescription drug reimbursement a reality, but it just needs a bit more on the medical safety side of things.

As Hibbert-Iacobacci says, "I don't see how this train will stop rolling. The [marijuana] industry is huge. It employs a lot of people. They just have to show that its use is safe from a medical perspective."

Employment attorneys like Larry Casey, of the Davis, Malm & D'Agostine law firm, see a potential recruiting benefit for employers who do wind up covering medical marijuana in their health plans. In a recent article from the Society for Human Resource Management (SHRM), Casey states: "In an industry or area of the country that is progressive about the use of marijuana for medical purposes, covering medical marijuana could help an organization be seen as a progressive employer."

The biggest barrier

Regardless of how much momentum the medical marijuana reimbursement movement gains or how many states legalize the substance, there is still one giant problem: The federal government classifies marijuana as a Schedule I drug ??? a designation it uses on substances like heroin, LSD and ecstasy.

This classification gives marijuana the harshest range of criminal penalties and is the reason why the U.S. Food and Drug Administration has not approved medical marijuana and, in all likelihood, will not until it is reclassified to a lower schedule.

The Schedule I tag is also why, even if employers would like to offer medical marijuana reimbursement, they will likely have a difficult time finding an insurance provider that is willing to offer health insurance or workers' compensation plans that cover medical marijuana.

Self-insured plans can cover medical marijuana. However, the patchwork of state and local regulations combined with the uncertainty of the federal government's stance, makes this a far from easy proposition for employers, too.

As Mary Kay O'Neill, an MD and partner with Mercer, says: "It is difficult to come up with policies for national employers, who are often reluctant to administer a patchwork benefit."

Still, many believe the push for legalized marijuana will lead to a reclassification of the current Schedule I designation. And when that happens, it will only be a matter of time before medical marijuana finds its way into employer-sponsored health plans.

Posted In: Drugs/Alcohol, Abuse and Testing; Discrimination, Illegal

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