Understanding “Medical Marijuana” in Workers’ Compensation

Over the last several years, more states have adopted laws that govern the use of marijuana for medicinal purposes.   While marijuana remains a Schedule I controlled substance under federal law, more states are considering it for legal use to treat work injuries.

What Do State Laws Permit

There are roughly 23 states that allow the use of marijuana for medicinal purposes.   The laws in these states vary on how they can be used.   In Minnesota, the use of this drug is limited to liquid, pill or vaporized forms.   The smoking of marijuana remains illegal.   In other states such as California, possession of marijuana is limited to a specific number of plants a person may cultivate and otherwise possess, and allows for state issued cardholders to smoke marijuana to treat a medical condition.

The conditions for which marijuana can be used also vary from state to state.   Most states allow for it to be used for the following conditions:

  • Most forms of cancer;
  • Glaucoma;
  • HIV/AIDS;
  • Tourette’s Syndrome;
  • Amyotrophic lateral sclerosis/Lou Gehrig’s Disease (ALS);
  • Seizures and epilepsy;
  • Severe and persistent muscle spasms;
  • Crohn’s Disease;
  • Terminal illness with a life expectancy of less than a year; and
  • Chronic pain conditions.

The use of medical marijuana for “chronic pain conditions” is a contentious issue as definitions or pain varies in each jurisdiction.   The required levels of pain to qualify are often subjective in nature, which can lead to abuse or  de factolegalization for recreational use.

Conflict with Federal Law

States that currently allow the use of marijuana for medical (and recreational use) are in conflict with federal law and the Controlled Substances Act, which is found under Title 21 of the United States Code.   Federal law enforcement has not taken dramatic steps for force compliance with federal law.   Under a 2015 federal budget act, the U.S. Department of Justice is specifically prohibited from using appropriations to shutdown state-legal medical marijuana programs.   Notwithstanding this capitulation by federal law enforcement, it is unclear how employers can comply with federal and state workplace safety laws if an employee has marijuana present in their system; even if they are not under the influence of the drug.

Implications in Workers’ Compensation

Most states with legalized medical marijuana are struggling to reconcile these laws with workers’ compensation program stakeholders seeking to promote “drug free” workplaces and other barriers imposed by federal laws and regulations.   One example of this conflict was in New Mexico.

In  Vialpando v. Ben’s Auto. Services, 331 P.3d 975 (NM Ct. App. 2014), an employer was ordered to reimburse an injured employee for payments made to receive medical marijuana.   According to the court, the  Lynn and Erin Compassionate Use Act, in conjunction with the New Mexico Workers’ Compensation Act required employers/insurers to provide “a worker [to] receive through employer reasonable and necessary health care services, which the regulations define to include drugs….”   In this instance, because marijuana was legal for medical use, it was compensable for purposes of workers’ compensation and “reasonable and necessary” medical care.

In approving the reimbursement for medical marijuana, the Court also examined a number of public policy concerns raised by the employer/insurer, which included:

  • A conflict in federal law regarding marijuana and state legalization for medical purposes; and
  • Workplace safety and concerns regarding employee’s using/being under the influence of controlled substances.

Both arguments were rejected by the courts.

Addressing Concerns Regarding Medical Marijuana

The legalization of marijuana presents a number of issues for program managers and other stakeholders in the area of workers’ compensation.   It is important for these parties to remain engaged on this issue and address it within their programs.   It also serves as an opportunity for people to be in contact with the state agencies who administer the workers’ compensation laws and regulations.

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