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The Medical Marijuana Dilemma – RX for Workers Compensation Disaster?

The National Council on Compensation Insurance has addressed the issue of Medical Marijuana in two recently released articles with three still to come.  The series is titled “The Marijuana Conversation”.  The first two installments covered the questions that insurers are asking and the questions the employers are asking.  The third installment will cover the questions that employees are asking.  This is a topical issue with no easy answers to these questions.  Many states have voted to legalize marijuana for medical and recreational use which has led to this dilemma in regards to the various stakeholders in regards to Workers Compensation.  Twenty-nine states and Washington, D.C. have legalized marijuana for medicinal purposes and eight have legalized it for recreational use.  This is a trend that will move other states in this direction with fifteen possibly legalizing in one or both forms in the coming year.

The United States Drug Enforcement Association deemed that Marijuana would remain classified as a Schedule 1 in 2016 under the Controlled Substance Act.  Schedule 1 drugs have been categorized to have a high potential for abuse and no current medical use and a lack of accepted safety for use under medical supervision.  The dilemma for Workers Compensation insurers and employer becomes very evident with this categorization.  Marijuana is still illegal under federal law but the feds are looking the other way in those state that have legalized marijuana.

Connecticut, Maine, Minnesota, New Jersey and New Mexico have found that medical marijuana is an allowable workers compensation treatment and reimbursable by insurers.  New Mexico was the first in 2014 in Vialpando V. Ben’s Automotive Services and Redwood Fire & Casualty.  The New Mexico Court of Appeals said that insurers must reimburse “qualified WC claimants for the cost of medical marijuana to treat compensable injuries.  The New Mexico Supreme Court denied review.  Connecticut and Maine have also found the use of medical marijuana to be permissible and reimbursable.  Both Connecticut and Maine have cases pending on appeal regarding medical marijuana use in workers compensation.

The Opioid crisis in the United States has prompted dialogue suggesting that medical marijuana can be a less harmful option than opioids.  Medical Marijuana usually does not include Tetrahydrocannabinol or THC which causes the high found in recreational marijuana.  This would be one of the arguments as an alternative to opioids.

The use of recreational marijuana while at work or containment in the system from recent usage still is a reason for restriction of workers compensation benefits when a worker’s injury is a result of intoxication or drug use.  The states vary on the restrictions from reduction in benefits to complete denial of medical and income benefits.  Employers must balance administering a drug-free workplace and the establishment of hiring practices when employees are legally using medical marijuana under state law.  There are no easy answers and in time the Courts will determine the best path forward.  In the meantime, please read the insightful “The Marijuana Conversation” from the National Council on Compensation Insurance.  Here is the link: https://www.ncci.com/Articles/Pages/II_Marijuana-Conversation-Employer.aspx

If you would like to learn more about the subject, please contact Hugh Carroll at 301.838.8832 or email at hcarroll@insassoc.com

Information about the Author:  Hugh is a native of Washington, DC and was raised in Silver Spring, MD.  He graduated from University of Maryland at College Park and entered into the insurance business in 1977 as a claims adjuster.  He then entered into the brokerage end of the business when he joined a large international insurance broker.  Here Hugh focused on the commercial insurance needs of contractors, technology companies, and non-profits among other industry sections.  Hugh joined the team at IA in 2009 and currently serves on the board of both the Home Builder’s Care Foundation, and the Catholic Business Network of Montgomery County.

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