As of 2019, most states in the country allow for the medical use of marijuana – 32 states to be exact. Each state has its own system for handling medical marijuana. Some states limit the potency of the available marijuana, while other states restrict when it can be used, limiting it to only a specified list of illnesses.
However, no matter how many states have laws in the book allowing it, the federal government still prohibits it- which makes for a tricky situation, especially when an employer is being asked to pay for it to treat an injured worker. Needless to say, the issue is complicated.
A few years ago, the New Mexico appellate court issued a decision that required insurers to provide reimbursement for an injured worker using medical marijuana to treat their injury. This was a first of its kind decision and seems to be signaling a trend.
In 2017, a New Jersey administrative law judge ruled that a carrier was responsible for reimbursement of medical marijuana for an injured worker who was using the marijuana to treat one of their covered injuries. And in Minnesota, an insurance carrier paid for an injured workers' use of medical marijuana to treat muscle spasms.
In contrast, other states, like Arizona, take the opposite position. A carrier cannot be compelled to pay for medical marijuana, because it remains illegal on the federal level. Medical marijuana also remains absent from treatment guidelines. In the cases where it was found to be proper treatment for an injured worker, the physician only prescribed it after trying other forms of treatment unsuccessfully.
Even taking into account the various views on coverage for medical marijuana in workers' comp, one of the biggest conflicts comes in regards to workplace and employee safety. Many employers operate a drug free workplace, which means the use of marijuana, which is illegal on the federal level, could be considered a violation of that policy. Moreover, employers place restrictions on employees operating under the influence, which does include prescription medications, especially when the employee is operating machinery or driving a vehicle.
Even if the marijuana is used as a medical treatment for a workplace injury, much like when they are prescribed opioids, they may be prevented from returning to work. Further, if they're allowed to return to work, it raises issues about whether medical marijuana would violate the drug free workplace rule.
Although medical marijuana is becoming more prevalent across the country, serious issues remain as to its effect on medical treatment, the workplace, and workers' compensation. Medical marijuana and workers' compensation continue to be an issue to watch.
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