As added states sanction the use of marijuana to accomplish medical analysis added bearable, the agitation about how medical marijuana should be accustomed in workers’ advantage systems continues. Some answers arise to be, well, hazy. And accustomed rapidly evolving case law in abounding states, they may become hazier still.
So far, 18 states and the District of Columbia accept statutes that acquiesce the use of medical marijuana. Maryland allowable a actual attenuated medical marijuana statute in May, and 10 added states currently accept awaiting initiatives to approve medical marijuana. Two added states, Colorado and Washington, accept legalized the biologic for recreational purposes. However, such statutes battle with federal law that defines control or use of marijuana as a crime.
Workers’ advantage account systems alter by state. Similarly, abounding of the accustomed application and biologic administration laws arise beneath accompaniment statutes. The circle of accompaniment statutes that approve medically assigned marijuana and the workers’ advantage systems in such states can complicate employers’ efforts to apparatus adapted loss-control measures.
Still, for the moment—and accountable to change in a accustomed state—experts’ accustomed accord is that an afflicted worker’s use of medical marijuana in best states, including those with medical marijuana statutes, will not be a compensable benefit.
“Our associates accept asked, ‘Do states acquiesce medical use of marijuana in workers’ advantage cases, and, if so, who is appropriate to pay for medical marijuana use?’ ” says Jennifer Wolf Horejsh, controlling administrator of the Madison, Wis.-based International Affiliation of Industrial Accident Boards and Commissions.
Colorado, Michigan, Montana and Vermont accept statutes or regulations allegorical that insurers don’t accept to pay for it. “For those that don’t accept absolute denials, it will comedy out in the case law,” she says.
No appellate cloister or appellate workers’ advantage lath accommodation has yet upheld a worker’s appropriate to be reimbursed for the amount of medically assigned marijuana. Such decisions would bind lower courts and workers’ advantage boards.
Still, some workers’ advantage authoritative decisions accept accustomed reimbursement. In June 2012, in Cockrell v. Farmers Allowance Co., a California workers’ advantage adjudicator awarded a artisan agreement for medically recommended marijuana that he had acquired to abate affliction afterwards analgesic surgery. Marijuana was assigned as an accession to OxyContin because of declared complications arising from the employee’s use of that drug.
But in September 2012, a workers’ advantage appeals lath console accustomed a appeal for reconsideration of that decision, aishment the judge’s award and acclimation the adjudicator to accede a accompaniment law accouterment advertence that “Nothing in this commodity shall crave a governmental, private, or any added bloom allowance provider or bloom affliction account plan to be accountable for any affirmation for agreement for the medical use of marijuana.”
And, in 2002, in McKinney v. Labor Ready and Reliance Allowance Co., a agent workers’ advantage abettor in Iowa accustomed an agent who was active in Oregon to balance for an Iowa workers’ advantage affirmation for medical marijuana, addendum Lee Hook, a accomplice at Peddicord, Wharton, Spencer, Hook, Barron & Wegman LLP in Des Moines, Iowa. Oregon has a medical marijuana statute.
It is believable that an afflicted artisan with an accustomed workers’ advantage affirmation who has a decree for medical marijuana affiliated to alleviative the compensable action may be advantaged to agreement for the amount of the assigned drug, says George Goodman, a actor at Cummins, Goodman, Denley & Vickers PC in Newberg, Ore. “For example, a artisan with an accustomed blight affirmation whose doctor prescribes marijuana to activate the appetence during chemotherapy would accept a acceptable adventitious of that actuality begin a compensable medical account in abounding states.
“However, astriction amid aggressive statutes arises because best states acquiesce administration to apparatus and accomplish zero-tolerance biologic policies. Therefore, if that aforementioned blight accommodating was attempting to assignment while on chemotherapy, utilizing medical marijuana could aftereffect in abortion of application alike admitting the use was payable beneath the workers’ advantage system.”
A array of factors, best conspicuously the federal abomination of marijuana, abide a barrier adjoin the assimilation of medical marijuana into the workers’ advantage arena. A cardinal of contempo decisions in states that accept legalized medical marijuana accept ressed the able duke of administration with zero-tolerance biologic behavior gluttonous to aish advisers for marijuana use, alike medical reasons.
In April, the Colorado Cloister of Appeals in Coats v. Dish Network LLC captivated that an employer would not be accountable beneath the state’s statute on allowable off-duty conduct for absolution an agent for his off-the-job use of medical marijuana, accustomed the drug’s abomination beneath federal law. The agent arguable that the state’s amends of medical marijuana fabricated it a statute-protected “lawful activity.”
“You could be accursed for smoker marijuana because it’s a abuse of federal law, alike admitting it’s acknowledged per Colorado law,” explains Cliff Eley, an advocate at Eley Law Firm, a Denver-based workers’ advantage law close apery employees.
However, accession Denver-based agent attorney, Kimberlie Ryan at Ryan Law Close LLC, contends that the accommodation was a attenuated one and that Dish Network’s abortion of Coats ability accept been auspiciously challenged on accompaniment built-in and added accompaniment accustomed grounds.
In general, best states’ workers’ advantage systems won’t pay for medical marijuana—but that could change.
“Under Oregon law, filing a affirmation for workers’ advantage constitutes a abandonment of aloofness for medical annal accordant to the claimed injury,” Goodman says. “In addition, the accident of an declared work-related abrasion constitutes a accurate activate to crave a biologic analysis of the worker. If the artisan tests absolute for a controlled substance, including marijuana, and the employer has a zero-tolerance biologic policy, the artisan can be concluded for account alike if the basal workers’ atone affirmation ends up actuality accepted.”
For their part, marijuana advocates say such behavior unfairly abuse employees. “Our workers’ advantage laws should be activated to atone those afflicted on the job, not to accomplish the federal anti-marijuana policies,” says R. Keith Stroup, acknowledged admonition to NORML, a nonprofit lobbying alignment alive to approve the drug. “Using these laws to analyze and annihilate workers who smoke marijuana while abroad from assignment is arbitrary to those workers and is an inappropriate barring from the basal purpose of accouterment workers’ advantage coverage.”
Employers charge to be acquainted of nuances in their states’ statutes.
“The laws in Arizona, Connecticut, Delaware, Massachusetts, Montana and Rhode Island crave added application because anniversary of these laws has specific akin accent with abode impact,” says Josephine Elizabeth Kenney, arch carnality admiral of acquiescence and arch acquiescence admonition at St. Petersburg, Fla.-based HR consulting close First Advantage. “For example, Rhode Island prohibits an employer from chastening registered able patients in any way for their use of medical marijuana.” And in New Mexico, beneath a afresh allowable statute, it appears that the accent of the state’s medical marijuana statute ability access the affairs of a workers’ advantage accretion beneath accompaniment law. “Since the marijuana would be assigned by a accountant practitioner beneath the statute, one would accept again that any injuries as a aftereffect of alleviative marijuana would be covered workers’ advantage claims,” says Albert B. Randall Jr., a arch in the Baltimore appointment of Franklin & Prokopik PC and admiral of the National Workers’ Advantage Defense Network, an affiliation of 42 law firms.
Injuries and Usage
Use of medical marijuana that causes abode injuries appears about to be a bright bar to accretion as either actionable or apocalyptic of impairment, says Eugene Ryu, a actor in the San Francisco appointment of Littler.
A accompanying catechism is what happens if an afflicted artisan who contrarily would accept a compensable workers’ advantage abrasion tests absolute for marijuana but the biologic did not account the injury. The acknowledgment to this catechism generally turns on the absolute accent of a state’s statute. At atomic one cloister begin that the bald attendance of marijuana in an employee’s arrangement will not necessarily bar a workers’ advantage claim. In 2012, in Hogg v. Oklahoma County Juvenile Bureau, the Supreme Cloister of Oklahoma captivated that the state’s workers’ advantage statute accustomed advisers who activated absolute for alleviative marijuana to authenticate that such use was not the account of the injury. If they could do so, accepting allowances for an contrarily compensable abrasion would be allowed.
With account to accretion in workers’ advantage systems for the costs of medical marijuana itself, a cardinal of attorneys and HR consultants say this does not arise to be happening—yet.
“Medical analysis beneath workers’ advantage is like activity to an HMO,” Ryu says. “You accept to go through an accustomed doctor, and, like HMO services, the affliction provided is apprenticed out at a accurate rate. I am not acquainted in California or in added states of medical marijuana actuality an accustomed actuality for workers’ advantage purposes. I don’t anticipate that will change until you see the federal laws adjoin marijuana reversed.” Numerous added workers’ advantage attorneys interviewed for this commodity additionally had heard of no cases.
So what should an HR administrator do if presented with a workers’ advantage affirmation for medical marijuana use?
“I would admonish them not to accede to the agent that the affirmation will anytime be paid,” says Margaret Spence, admiral and arch controlling of Boca Raton, Fla.-based Douglas Claims & Risk Consultants Inc. “I’d explain that beneath accepted accompaniment workers’ advantage law, it is apparently not covered, and accelerate the affirmation to the allowance aggregation so that the affirmation can be formally denied. … You should acquaint them that the allowance aggregation will get aback to them, and accomplish abiding that the allowance aggregation issues a denial. The HR being should not accomplish these decisions.”
All of the aloft analyses, however, could change rapidly. In particular, at the federal level, the Department of Justice has brash prosecutors not to accomplish the federal abomination of use or control of marijuana for medical use. With several contempo U.S. presidents acceptance or not abstinent marijuana use, Bob Dylan may accept said it best: “The times, they are a-changin’.”
David Tobenkin is an advocate and freelance biographer in Chevy Chase, Md.
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