NCCI Breaks Down the Convoluted Web of WC-Related Weed Laws

Boca Raton, FL (WorkersCompensation.com) - Can you name the states that allow reimbursement for medical marijuana? How about those that prohibit reimbursement? And what about states that don’t prohibit but don’t require insurers to pay for medical marijuana?

As a new NCCI Update shows, jurisdictions are all over the place in terms of how they address the issue of reimbursement for medical marijuana to injured workers. According to the paper, only three states do not have laws legalizing marijuana in some form, and two of them — Kansas and Nebraska — have pending legislation.

In addition to the 10 states where recreational marijuana is legal and the 33 states and D.C. that allow it medicinally, another 14 states have legalized CBD oil/non-psychoactive forms of marijuana “under certain circumstances.”

“Insurers are increasingly receiving requests to reimburse for medical marijuana use for workers’ compensation treatment,” the Update says. “Given the friction between state and federal law, states are faced with the challenge of whether to approve medical marijuana treatment for work-related injuries. This issue is being addressed through legislation as well as in the courts.”

Here’s a breakdown of how some states are handling the issue:

• Permit reimbursement — Connecticut, Minnesota, New Mexico, New York. Additionally, New Mexico has established a maximum reimbursement amount in its fee schedule.
• Prohibit payment — Florida and North Dakota
• Reimbursement ‘not required’ — Louisiana

Some states this have been considering whether to authorize reimbursement of medical marijuana, including Hawaii, Kansas, Maine, Maryland, New Jersey, New York, and Vermont.

Kentucky and Oklahoma have looked at proposals like Louisiana’s, which neither prohibits nor requires reimbursement. Oklahoma’s legislation would also clarify “instances in which an employer may take action against an employee or applicant who tests positive for marijuana,” and “authorizes employers to have written policies regarding drug testing and impairment.”

Proving impairment, or lack thereof, remains a sticking point since traditional drug testing can detect the presence of the drug in a person after its effects have worn off. “There are efforts under way to develop tests similar to breathalyzers and other methods currently available to test blood alcohol levels, which would better help define what could be considered appropriate ‘impairment’ levels,” according to the paper. “Until those tests are fully developed and implemented, states and state courts are addressing this issue on a case-by-case basis. For example, in November 2018 the Oklahoma state court of appeals ruled in Rose v. Berry Plastics Corp. that the presence of tetrahydrocannabinol (THC) in an employee’s blood after a workplace accident does not automatically mean that the employee should be denied workers compensation benefits due to impairment.”

Among the most recent notable state court decisions on the issue is the March New Hampshire Supreme Court ruling that held state law does not prohibit reimbursement. But the court did not rule on whether the insurer was required to pay, and remanded the case to the compensation appeals board to determine, among other things, if federal law would be violated if the insurer were ordered to reimburse for the drug.  

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