What You Need to Know About Workers’ Compensation and Medical Marijuana

With 29 states and the District of Columbia having some form of legalized marijuana, the question of whether medical marijuana should be covered under workers’ compensation is becoming increasingly important and debated. Issues over drug testing and workplace policies, employment practices, hiring practices, compliance with federal regulations, and lines of insurance coverage are becoming increasingly relevant because of the widespread legalization of medical marijuana across the United States.

What is Medical Marijuana?

Medical marijuana is prescribed by a doctor to a patient for the treatment of symptoms such as chronic pain, nausea and muscle spasms. If a doctor approves the use of marijuana, the patient will receive a “marijuana card” that will allow you to buy marijuana from a dispensary. Medical marijuana comes in many forms and may be smoked, vaporized, or taken as a liquid extract.

Legalization of Medical Marijuana

The number of states allowing the use of medical marijuana is rapidly growing. Delaware became the 16th state to legalize medical marijuana in 2011 when SB 17 was signed into law. Since then, 11 states have legalized medical marijuana. Several of those states still prohibit some forms of marijuana. For instance, some states have only legalized cannabidiol (CBD), a specific component of marijuana, and continue to prohibit THC, which is the compound that makes a person feel high. Some states also prohibit smoking medical marijuana, but allow vaporization. Dosages vary by state as well.

Furthermore, federal law still classifies marijuana as a Schedule I controlled substance, which means possession of the drug is considered a federal crime. Schedule I classification also considers a drug to have a high potential for abuse, no recognized medical use, and a lack of accepted safety. Schedule II drugs, such as oxycodone and hydrocodone, also have a high potential for abuse but have accepted medicinal use. Proponents of the use of marijuana in place of opiates have argued that marijuana should be classified to Schedule II or lower. The US DOJ has clarified that it will not enforce federal penalties in states that have legalized cannabis in any form. However, contradictions between state and federal laws still leave the issue of funding medical marijuana through workers’ compensation programs debatable because workers’ compensation policies typically follow federal law.

To combat disparities in state and federal policies, several states have passed explicit laws prohibiting payment of medical marijuana under workers’ compensation. These states include Colorado, Michigan, Montana, Oregon and Vermont. The remaining 23 states are seeing or will see cases in the future where medical marijuana is requested to be covered under workers’ compensation.

Delaware’s Medical Marijuana Laws

While Delaware has not legalized marijuana to be used recreationally, the 2011 SB 17 did legalize the medicinal use of marijuana. Under this law, patients are protected from arrest if they have certification from their physician that they have a specified debilitating condition and that they would benefit from the use of medical marijuana. The law also allows for state-regulated non-profit distribution of medical marijuana by compassion centers (dispensaries).

Conditions that are approved by Delaware law to be treated by medical marijuana that are pertinent to workers’ compensation cases include post-traumatic stress disorder (PTSD) and severe, chronic pain that has not responded to previously prescribed medication or surgical measure for more than three months.

The state’s first dispensary opened in June of 2015 in Wilmington and there are plans for two more to open in Kent and Sussex Counties in 2017.

A recent effort, namely HB 110, has helped Delaware make steps toward legalizing marijuana for recreational use. This bill, which is currently under revision, will need to pass both the House and Senate and be signed by the governor in order to be enacted.

Medical Marijuana & Workers’ Compensation

Tension between local and federal law has resulted in a range of disparate decisions about who is required to pay for medical marijuana in workers’ compensation cases. Since paying for medical marijuana under workers’ compensation has remained illegal according to several federal bills, the prevailing professional opinion is that workers’ compensation providers should not pay for medical marijuana. However, in spite of these regulations, numerous boards are ruling that marijuana is compensable under the workers’ compensation system.

Adversaries of legalization are concerned with the lasting effects of marijuana. Workers in safety-sensitive occupations may be subject to potential adverse cognitive and physical effects of marijuana. According to the National Institute on Drug Abuse, using marijuana can as much as double the chance of a car accident. Other negative impacts include the possibility of dependence and an association with an increased risk of cardiovascular problems.

Medical marijuana further complicates workers’ compensation claims because there is no formal way to bill for marijuana. It is not included in any workers’ compensation treatment guidelines and can contradict state and company hiring guidelines. Furthermore, the price of marijuana is not regulated like pharmaceutical drugs, which further complicates billing processes.

However, marijuana is quickly gaining ground as an acceptable treatment for pain. Proponents cite marijuana as an effective substitute for prescription opioids to manage pain. According to the CDC, the number of overdose deaths involving opioids has quadrupled since 1999, while there are no recorded deaths related to marijuana. And while there is risk of dependence, it is less than that of prescription drugs.

The Future of Medical Marijuana in Workers’ Compensation Cases

Although some states (including Delaware) have made progress in clarifying the issue of medical marijuana and workers’ compensation, there is still no cut-and-dried answer. As of now, most workers’ compensation cases involving marijuana are handled with the same fundamental question as any others: Is the medical care reasonable and necessary?

The fact that more and more states are legalizing medical marijuana leads us to expect that marijuana will eventually be legalized nationwide. However, disparities between federal and state laws will continue to create issues with the involvement of medical marijuana in workers’ compensation cases.



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