The 2016 election is seen by many as the most highly charged and anticipated election in decades, bringing voters from all corners of each state out in droves to cast their ballots. While many are focusing on the Presidential race or the down-ballot races in their state and local governments, workers' compensation insurers are looking at ballot initiatives in several states that would legalize medical or recreational marijuana for all citizens. This can put a crimp in workers' comp insurance policies that currently reserve the right to deny coverage for accidents in which the injured worker tested positive for THC. Read on to learn more about how workers' compensation laws in your own state might be affected if your fellow voters legalize medical or recreational marijuana on November 8.

How are marijuana-based claims treated under current workers' compensation laws?

Currently, only five states require workers' compensation insurers to reimburse claims in which the injured person was under the influence of legally-prescribed marijuana. In other states, even those in which marijuana use is legal (or at least decriminalized), any workers who test positive for THC after an accident may find their claims denied, even if they had not consumed marijuana for days or even weeks. However, as marijuana legalization across the 50 states reaches a tipping point, more and more insurers that issue policies in multiple neighboring states may begin approving marijuana-related claims.

Not all employers or insurers will perform a blood test at the time your injury is reported. Investigations into work-related accidents can sometimes take weeks, and you may find that your claim will be approved and checks will begin arriving even if you were under the influence of marijuana at the time of the injury. However, if you accept workers' compensation benefits and are later shown to have tested positive for THC at the time of the injury, you may be required to repay a portion of these benefits, unless your state offers some additional protections. (It should also go without saying that it's necessary to disclose any alcohol or drug use on the forms provided by your employer's workers' compensation insurer, as lying on these forms could subject you to civil penalties in addition to repayment of your benefits.)

What should you do to preserve your workers' compensation rights if you legally use marijuana?

If your state isn't one of the five that requires workers' comp insurers to cover marijuana-related claims, there isn't much you can do to force the insurer to pay your own workers'-comp–covered expenses, short of a lawsuit. If you're able to prove that your accident or injury was due to your employer's negligence and not your own marijuana use (or if you can show that you weren't under the influence of marijuana at the time of the accident), you may be able to receive workers' comp benefits and other damages. The outcome of this type of case will largely depend on the precedent in your state or federal judicial district—some districts are known to be much more "worker-friendly" than others and are more likely to resolve these types of disputes in favor of the injured worker.

For those whose employers are cannabis-friendly and who reside in a state in which marijuana is legal, asking your employer to investigate workers' comp policies that offer an optional coverage option for employees who have a prescription for marijuana may be an option. Although it's unlikely any insurer will provide a blanket coverage option for recreational use (of any drug, including alcohol), some treat legally-prescribed marijuana like other legally-prescribed drugs that, when used according to a doctor's recommendation or instructions, isn't enough in and of itself to waive workers' compensation coverage. Click here to find out more.