How Marijuana is Affecting Workers’ Compensation and the Workplace

Presented by:

Darrell Brown, Executive Vice President and Chief Claims Officer, Sedgwick Claims Management Services, Inc.

Denis Algiers, Director, Risk Initiatives/National Medical Director, Albertson’s Safeway, Inc.

This session at the RIMS Annual Conference & Exhibition in San Antonio was an overview of the state of recreational and medicinal marijuana legislation and impact with respect to employer policies and workers’ compensation claims programs.

During the November 2016 election and continuing during legislative sessions in 2017, states are expanding legal use of marijuana for medical use as well as adult recreational use. Federally though, the use of marijuana even for medicinal use, still violates federal law. This is creating and underground economy that is unregulated in use, manufacture, quality control, and distribution.

Because marijuana use is against federal law, doctors can not prescribe marijuana for treatment, they can only recommend that as a possible treatment in states that have legalized medical use. This allows the patient to obtain medicinal marijuana from dispensaries, but the patient is in control of what specific product they purchase. Lack of regulation of manufactured/growth of variety leaves risk in knowing the characteristics and effects of any selection the user procures and ingests.

Recently, medical marijuana has been proposed as a possible alternative in the effort to curb opioid abuse. The panelist cautioned that the lack of research on the effectiveness of marijuana and the unregulated nature of the industry should be seriously considered before the industry rushes in to another possible crisis long-term.

In respect to workers compensation claims, most carriers have declined reimbursement for marijuana, unwilling to risk premium dollar disbursement toward a federally illegal substance. While carriers are bound under most WC acts to reimburse providers or employees for accepted medical services, this is in conflict with aiding and abetting under federal sentencing guidelines. With little scientific research treatment effectiveness and completion, claim teams are also struggling with arbitrary schedules and benchmarks. Courts have been reviewing these cases and in some cases have ruled in favor of the injured worker receiving reimbursement.

The ADA does not require employers to accommodate the use of marijuana. However, if an employee entered a substance abuse program, employers have to accommodate the employee’s participation. ADA does not consider drug testing to be a medical examination.

Recreationally, the panelist compared to marijuana use as similar to alcohol use in how it should be regulated in drug-use policies. People respond differently to how marijuana affects them, making detecting and measurement of impairment difficult. However, known effects include short-term memory problems, impaired thinking, loss of balance and coordination, and decreased concentration. The Supreme Court has upheld rulings allowing employers to terminate employment based on failed drug-testing, even when employees may be using marijuana as part of a workers’ compensation claim injury treatment.