As more states decriminalize the use of medical marijuana, employers are beginning to face a new challenge: How to maintain a safe workplace while not discriminating against the employee who has been prescribed medical marijuana. Add the fact that federal law views marijuana use as illegal, and employers must research and first understand their state's disability and privacy laws, and then their company policies on drug tolerance, in order to stay within the law.
Since California decriminalized medical marijuana in 1996, medical marijuana has steadily moved into mainstream culture, sparking awareness that it can have beneficial effects for some chronically ill and injured people. The medical evidence suggests that medical marijuana has a positive impact on management of pain when other treatment protocols fail. Thirteen other states have followed California's lead. Another 14 states, even states considered conservative on drug policies, have pending legislation or ballot measures to decriminalize medical marijuana during this legislative session.
Each state is handling the issue differently, setting various guidelines and limits, but all 14 states where medical marijuana is decriminalized do require proof of residency for the patient to be considered for a medical marijuana prescription. Patients and their caregivers can cultivate in 13 of the 14 states. (Home cultivation is not allowed in New Jersey, which was the most recent state to decriminalize medical marijuana, and a special license is required in New Mexico).
In addition to the states where it is decriminalized, Arizona and Maryland have passed laws that are favorable toward medical marijuana but did not enact versions of decriminalization. Arizona allows physicians to prescribe marijuana, but federal law prohibits physicians from writing prescriptions for illegal drugs (which includes marijuana)--giving the state's bill no practical effect. In Maryland, although medical marijuana is not decriminalized, the medical-use defense is allowed in court.
(To see all of the states that have passed or are considering passing legislation, check out this chart on medical marijuana laws.)
In the states noted in the attached chart, we are already witnessing a growth in lawsuits and rulings regarding the issue of medical marijuana. Each state law is different, from possession and cultivation limit to patient registration rules, and all conflicting issues have not yet been tested in court. And for some states, not only does the state law conflict with the federal law but there are multiple laws within the state that are in conflict. For example, Colorado has one law that states that employers do not have to accommodate for medical marijuana use in the workplace, which conflicts with another Colorado state law that prohibits firing employees for engaging in illegal activities off-duty.
Under the Federal Controlled Substances Act, marijuana is an illegal substance--what had been a clear-cut law until states began decriminalizing medical marijuana. Now, as state and federal laws collide and conflict, medical marijuana is creating havoc for employers and thus lawsuits.
Recently, we are also seeing movement outside of state law. In October 2009, the United States Justice Department issued a statement proclaiming that the federal government will not prosecute individuals who use marijuana for medical purposes as long as they follow state laws. Also in 2009, the American Medical Association (AMA) softened it's stance on marijuana and stated that it will allow more testing on whether or not there is a medical use for the drug for patients with debilitating symptoms.
Although the AMA stated that this new position is not "an endorsement of state-based medical cannabis programs," their research will include alternative ways to deliver the drug. The AMA has also asked the federal government to review the classification of marijuana, possibly moving the drug into a less restrictive category.
QUESTIONS TO CONSIDER
Medical marijuana most likely will not be covered under an employer's healthcare benefits plan because the United States Food and Drug Administration (FDA) has not approved it. (Most health plans will not cover prescription drugs without FDA approval). It also is not reimbursable under an employee's flexible spending account because they can only be used for items approved by the Internal Revenue Service.
But the catch with medical marijuana comes with workers' compensation: Who will pay for the medical marijuana prescription when there is a work injury or illness connection? If it is covered under workers' compensation, then what impact does decriminalizing medical marijuana have on employers and their return-to-work and drug-free workplace programs?
Employers must re-evaluate their company policy on drug use and testing and stay consistent (and within state laws) with their actions on the issue. The decisions on how to treat employees, authorized by their attending physician and within the guidelines of state law, have to be measured against the employer's stance on drugs in the workplace. I will discuss that issue in more detail next month, but the main goal in every case needs to remain getting the disabled employee quickly recovered and safely back to work. An evolving area of the law, medicinal marijuana will remain a growing issue for workers' compensation claims in all states, for employees and employers.
(Editor's note: In part two of this series, Mark will cover the lawsuits and current rulings on the decriminalization of medical marijuana and offer options for employers.)
MARK NOONAN is a managing principal and the senior knowledge manager for workers' compensation for the Casualty Practice within Integro Insurance Brokers.
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June 3, 2010
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