Back in 1969, a Gallup poll found that 12% of Americans favored legalization of marijuana. Nearly half a century later, a recent Pew Research Center poll found that 52% of Americans now favor legalization. It’s not hard to see which way the cultural wind is blowing.
Marijuana initiatives have been capturing headlines for several years now, and 23 states and the District of Columbia have officially legalized marijuana for medicinal use.
A brave new world? Maybe. But for employers and workers’ compensation insurers, it’s presenting some sticky coverage questions.
Imagine this scenario …
A post-accident drug screen is positive for marijuana on a claimant who has been prescribed medical marijuana. Is the claim compensable? That depends. Some states rule that since it’s illegal under federal law, it’s illegal, period. If an employer can show that it’s the cause of the accident, the claim isn’t compensable. Other states say that if it’s a lawful medication recommended or prescribed by a licensed healthcare provider, the claimant was legally allowed to take it, so even if it was the cause of the accident, the claim would be compensable.
But even in states that deny compensability, it’s hardly cut and dry. Marijuana can stay in the system from 24 hours to 30 days and can’t be objectively measured, so proving impairment is nearly impossible.
Will workers’ compensation payers be on the hook for medical marijuana in states where it’s legal?
Marijuana is still classified as a Schedule I drug under the federal Controlled Substance Act, and there’s nothing in the Medical Marijuana Act requiring government medical assistance programs or private health insurers to pay for the costs associated with medical marijuana.
But in light of current trends, that could all change. What if the Equal Employment Opportunity Commission (EEOC) starts requiring employers to accommodate medical marijuana use as an ADA protected disability or treatment for a disability?
Besides the obvious conflicts between state and federal laws, and the fact that there’s still no concrete medical evidence to support marijuana use, there are other issues:
- Risks to workplace safety. What if a truck driver is legally allowed to use medical marijuana under state law, but not allowed to legally drive under federal DOT regulations while using it?
- Who pays who, and how much? Local pharmacies aren’t likely to stock medical marijuana anytime soon, and there’s still no formal way to bill for it like other drugs and no defined state fee schedules for reimbursement.
- Inconsistencies and lack of oversight. Conditions for growth and potency can vary greatly from one location and grow operation to another.
- What about Medicare Set Asides (MSAs)? Since the federal government still bans marijuana, the Centers for Medicare and Medicaid Services (CMS) currently won’t even review those cases.
What can employers do?
Some legal experts recommend that employers have a drug policy in place against the use of medical marijuana. Courts around the country have thus far held that you can still discipline employees – up to and including termination – for having illegal substances in their system.
As long as the Controlled Substances Act remains unchanged, marijuana cases will likely continue to favor employers and the workers’ compensation industry. But the winds of change are blowing. State and federal laws are evolving rapidly, so employers need to stay informed. Work closely with your HR and risk management teams, and review your drug policies regularly to make sure you’re in compliance.