The Medical Marijuana Club: High Times for Workers’ Compensation?

California is poised to join an exclusive club with regard to legalized marijuana. Voters in Washington, Oregon, Colorado, Alaska and the District of Columbia have passed laws legalizing marijuana for medicinal and recreational use. Voters in 23 additional states, including California, have laws in place that legalized marijuana use for medicinal purposes. While there is little question that recreational marijuana has no place in the workforce, employees that use it for medicinal purposes fall into a separate and unique category.

Is It Legal?

While states that have legalized marijuana believe that they have conclusively answered this question, unfortunately the reality is not so simple. This is because, to the chagrin of marijuana advocates, the federal government still officially considers marijuana to be a Schedule I drug. It is among those drugs that, according to the federal government, serve no medical purpose and cannot be prescribed as treatment for any ailment. So what are employers to do if they discover an employee has been prescribed and in fact is using medical marijuana? Employers must follow federal laws, but also are governed by the laws of the state in which they sit.

Luckily for California and other states that are grappling with legal struggles surrounding marijuana, Congress recently passed legislation that decriminalizes medical marijuana. While this does not extend to recreational marijuana, it provides guidance that allows employers to treat medical marijuana like any other treatment for an employee’s injury.

Who Pays for Treatment?

One consideration for employees who use medical marijuana and find themselves involved in the workers’ compensation system is whether its use will even be covered by their employer’s insurance coverage. For example, the New Mexico court of appeals recently found that an employer was liable for paying for an injured employee’s medical marijuana as treatment for his injuries. Whether this court’s findings will be an anomaly or guidance for future courts who will have to deal with this issue is unknown, but it does show that courts in states who have recognized medical marijuana as a viable treatment option may also consider expanding its reach into the workers’ compensation arena.

In California, the issue of whether workers’ compensation insurers will be required to pay for medical marijuana as treatment for a workplace injury has not been tested. Some insurers have indicated that they are considering handling any requests on a case by case basis, as they would with any prescription drug. However, others have concerns about potential use in the workplace and whether marijuana use would constitute an impairment that could lead to further injury. This latter group is in good company, as tests for marijuana impairment are far from perfect. An important issue that will need to be addressed, most likely through individual claims under existing workers’ compensation laws, is how to determine if a workplace injury was in-part or completely due to the employee’s use of medical marijuana and therefore, not compensable.

Conclusion

California lawmakers, attorneys, and citizens should be watching how medical marijuana in the workplace is being handled by courts in states such as Colorado and New Mexico. The future of coverage for treatment will likely be heavily impacted by how those courts rule on facts that are similar to those faced by parties involved in California workers’ compensation cases.