As medical and recreational use marijuana becomes more widespread under state law, changes are being considered for state workers’ compensation systems. The legalization of marijuana is likely to have a profound impact on all areas of employment, including workers’ comp claims as well as the following:
- Americans with Disability Act (ADA) compliance requirements
- Discrimination claims
- Drug testing and drug-free workplace policies
- Employment practices liability
- Hiring and firing guidelines
- Insurance coverage under EPLI, auto, and general liability policies
The Spread of Marijuana Legalization
The number of states legalizing the use of marijuana is growing quickly. There are currently 29 states that have legalized medical marijuana.
Recreational marijuana use is approved at a state level in Colorado, Washington, Oregon, Alaska and Nevada, as well as the District of Columbia. As of early this year, California also allows the legal sale of cannabis for recreational use.
Massachusetts recently approved recreational marijuana use, and sales are scheduled to start in July. Maine is working on a policy framework to support the marijuana use on a recreational basis.
State versus Federal Legislation
Marijuana use in any form is not legal at a federal level. Under the Controlled Substances Act of 1970, the U.S. Drug Enforcement Administration classifies cannabis as a Schedule I drug. As a result, state legislation legalizing marijuana use, either for medical purposes or for recreational use, is at odds with federal law.
In Michigan, for example, a federal court in Casias v. Wal-Mart Stores Inc., 764 F. Supp 2d 914 (2011), affirmed a district court decision that found an employer had the right to terminate an employee who tested positive for marijuana even though the claimant had a registry card and the use was after a compensable workers compensation injury. On the other hand, the Court of Appeals of Stark County, Ohio Fifth Appellate District in Trent v. Stark Metals Sales, Inc., 2015-Ohio-1115, affirmed a decision of the trial court that a worker who tested positive for marijuana was entitled to workers’ compensation benefits.
When federal courts decide workers’ compensation claims based on marijuana use, the claimant is often denied because marijuana use is illegal under federal law. If the same claim is decided under a state law that has legalized marijuana use, it is more likely that the claim will be admitted.
How Marijuana Legalization Complicates Workers’ Compensation Claims
Marijuana components can be maintained in the body for an extended period of time following use, according to the National Institutes of Health. The half- life of marijuana elements for an infrequent user can be 1.3 days and up to 5-13 days for frequent users. This residual impact can complicate workers’ compensation claims when it comes to evaluating an employee’s ability to perform his or her job functions, and whether or not marijuana might affect an employee’s return to work.
Billing complications for marijuana-related claims also exist, since a formal way to bill for marijuana such as a standardized fee schedule or pricing guidelines does not currently exist. This lack of formal billing interferes with drug utilization reviews by pharmacy systems to ensure patient safety. Also, the Centers for Medicare and Medicaid Services (CMS) will reportedly not review the costs of marijuana when determining Medicare Set Asides (MSA) since it is federally banned.
Potential Employer Actions
Many employers are reviewing their workplace and employment policies on a regular basis to comply with and incorporate any changes in marijuana legalization laws. Any payment for medical marijuana claims under workers’ compensation is often based on a careful review of the facts of each matter.
Until both state and federal marijuana laws are clarified, state workers’ compensation boards are likely to play a central role in evaluating direct payments for medical marijuana claims.
Workers’ compensation defense attorneys have their work cut out for them as they work closely with employers to review claims, treatment plans, and return-to-work policies after an employee is treated with marijuana.
Workers’ Compensation Panel Counsel Implications
Workers’ comp defense attorneys that develop an in-depth understanding of the issues associated with medical and recreational marijuana use in treating injured workers can demonstrate their leadership in the field through continuing education seminars, speaking engagements, articles, blog posts, and LinkedIn coverage.
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Workers’ Compensation Panel Counsel Campaigns
Business development campaigns targeting workers’ compensation panel counsel programs are one of the many services offered by Legal Expert Connections, Inc. We help workers’ compensation boutique law firms or practice groups target new clients among the following categories:
- Workers’ compensation insurance carriers
- Employers who maintain a self-insured retention (SIR) program
- Longshore and Harbor Workers’ Compensation Programs
- Defense Base Act (DBA) coverage, which provides workers’ compensation protection to civilian employees working outside the country on U.S. military bases or under a contract with the U.S. government for public works or for national defense
Workers’ Compensation Defense Marketing Consultant for Law Firms
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