In 2016, California voters approved Proposition 64, the California Marijuana Legalization Initiative (CMLI), which legalized recreational marijuana in the state. The CMLI joins the Medical Marijuana Regulatory and Safety Act (MMRSA) and the Compassionate Use Act of 1996. The MMRSA is a legislative package regulating medical marijuana consumption while the Compassionate Use Act of 1996 gives a person who uses medical marijuana a defense against specific state criminal charges for possession.
That said, just because favorable attitudes related to marijuana have changed does not mean that legislative attitudes have nor that employer attitudes should with respect to the drug as a medical treatment. The CMLI, in addition to allowing recreational use of the drug, added a new Health and Safety Code 11362.45, which states that the law allows for recreational use but that does not conflict with the "rights and obligations of public and private employers to maintain a drug and alcohol free workplace" nor does it require an employer to tolerate employee use in the workplace. Further, Health and Safety Code 11362.785(d) provides that employers need not accommodate medical use of marijuana and rendered marijuana non-compensable stating, "nothing in this article requires a governmental, private, or any other health insurance provider or health care service plan. . .liable for reimbursement for the medical use of marijuana."
However, many are still arguing that marijuana could be an effective alternative treatment for many pain conditions in light of the current opioid epidemic. In 2016, 11.5 million people in the U.S. misused prescription opioids, leading to approximately 116 deaths daily from opioid-related drug overdoses. As news coverage of the effects of this opioid epidemic continues, and political figures use addressing it as a political platform, people are taking the addictive quality of these drugs seriously and perhaps some may pursue alternative treatments such as marijuana.
In sum, despite changing opinions regarding marijuana and the opioid epidemic, marijuana can still be effectively barred from compensability in workers' compensation cases. Employers can, and should, continue to keep their workplace drug free and can prevail when contesting marijuana as a compensable treatment.
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