State Medical Marijuana Laws Trigger Concern for Comp Stakeholders

Insurers and employers trying to protect themselves against liability issues may want to take a close look at medical marijuana laws.

The situation can be dicey because of conflicts between federal and state statutes -- leaving workers' comp stakeholders scratching their heads.

"Fourteen states have legalized the use of medical marijuana, but federal law prohibits doctors from prescribing it," said Gary Hinson, vice president of ACE USA Claims. "State workers' comp laws are essentially silent on medical use of marijuana," Hinson said during the recent conference of the Florida Workers' Compensation Institute in Orlando, Fla.

State, federal marijuana laws conflict (10/04/10)

Use of Schedule II narcotics decreases among California injured workers (08/13/12)
IAIABC, ACOEM target state workers' comp agencies with opioid message (10/24/11)
Study shows increasing frequency, costs of physician-dispensed meds (09/06/12)
Opioids, physician dispensing continue to concern practitioners (02/25/13)

Adding to the confusion is the lack of consistent language in the state laws. While the 14 states typically approve use for specific medical conditions, some have what Hinson calls catch-all language, such as "Other chronic or persistent medical symptoms." Others, he said, allow some state regulatory body to approve additional conditions.

The language of the state statutes can be even more vague. "Most state laws allow prescription for anyone whose MD feels she or he 'might benefit from the medical use of marijuana,'" Hinson said. "In other states it's 'would benefit' -- more restrictive."

While states have not entered the discussion in terms of workers' comp, Hinson said at least one Canadian province already pays for medical marijuana in workers' comp claims.

The issue raises a multitude of concerns for workers' comp stakeholders, including:

If an employer or insurer is headquartered in a state that does not allow the medical use of marijuana, does payment for marijuana as a medical benefit violate that state's laws or federal laws?
Are employers required to accommodate medical use of marijuana in the workplace?
Would a request to pay for marijuana be subject to utilization review? What standards would utilization review use to review it?
Thirteen of 14 states allow marijuana to be home grown. What would be the proper basis for reimbursement?
What should an employer do if postaccident drug screening detects use of marijuana and the worker is, in fact, on a state marijuana registry?

Professional advice. A 25-year veteran in the field of workplace substance abuse says employers should treat medical marijuana just as they would any other drug, such as opiates and amphetamines.

"All these drugs are illegal until they are prescribed or authorized by law. Why are we dealing with them differently?" said William J. Judge, director of legal affairs, for Chicago-based Park-Dickens Group.

First and foremost, Judge advised employers to familiarize themselves with the specific legal language governing medical marijuana in each jurisdiction in which they work and recognize the requirements are different.

"Bottom line -- employers need to change: change their attitudes, change their [drug testing] policies, change their implementation of their programs with respect to this issue," he said. "To defeat a workers' comp claim, you have to be in compliance with drug testing rules."

In addition to 14 states, 27 cities have legalized medical marijuana. Judge also pointed out that Colorado has made the issue a constitutional amendment, giving it more weight.

On the question of the federal law versus state laws that allow medical use of marijuana, Judge said there is no clear cut answer. Federal law bars the possession, though not the use of marijuana. While federal law preempts state law on the issue, the current administration has chosen not to enforce that law.

"It's a question of preemption," he said. "Is there a conflict? Sure there is. Is there an answer? No, there is not."

In some states there is no clear answer as to whether employers and insurers should pay for medical marijuana. In others, such as Colorado, the law specifically notes that insurers need not pay.

Medical marijuana and workplace safety. One of the key considerations for employers and insurers in addressing medical marijuana is workplace safety in jurisdictions that allow medical marijuana. Judge said employers can make better use of medical review officers in situations where a workplace incident may be due to use of the drug.

MROs help determine if an employee who tests positive for a prohibited substance has a legitimate, medical reason for using the drug. But in the case of medical marijuana, MROs aren't going beyond that point to trigger a fitness-for-duty investigation by the employer.

"What's supposed to happen next is the MRO says, 'OK, but there may be a safety issue you need to investigate.' This is true for opiates and pain medications," he said. "What's happening -- or not happening -- MROs are not alerting employers that there may be this safety issue to follow up on."

That's important he said because there's an interesting twist to the issue of workplace accidents and medical marijuana. "While you might be denied workers' comp for the illicit use of the drug, if you're using it appropriately, that's not illicit," he said. "There are a lot of issues. Some have been addressed, some haven't been thought of."

Read more at the WorkersComp Forum homepage.

October 4, 2010

Newsletter Sign-up