Medical Marijuana in Workers’ Compensation

At the 2017 IAIABC Annual Convention, a session discussed the challenges and potential of medical marijuana in workers’ compensation. The speakers were:

• Matthew Fisher – Partner, Reinisch, Wilson, Weier PC
• Sherry Hickey – Assistant Vice President of Medical Management, Safety National

One of the first challenges with medical marijuana is the conflict between state and federal law on this issue. Under the basic concept of federalism, any conflict between state and federal laws is generally resolved in favor of the federal laws. However, the federal government has by policy deferred to the states when it comes to marijuana laws with some limitations. The U.S. Department of Justice has issued a policy which focuses on preventing transporting large quantities of marijuana across state lines. They are not prosecuting state licensed marijuana growers or people possessing marijuana for their personal use.

Because marijuana is still classified as a Schedule 1 controlled substance, it technically can NOT be prescribed by a physician. In addition, the federal banking system cannot be utilized in the business so this tends to be a cash only business.

One of the challenges for the medical marijuana industry is coming up with standards and guidelines for dosages. There really is not much regulation around this. It is also important to note there are differences between the THC that provides the “high” and the CBD that has been shown to have some medical effects. Some states medical marijuana rules only allow the CBD form, while most allow for the THC form.

There is significant variation in the states with regard to their medical marijuana laws. This includes variations in what conditions quality to use medical marijuana and what state agency has oversight of the industry. Some states medical marijuana laws specifically state that it cannot be covered by insurance. This includes laws in Oregon and Michigan.

In workers’ compensation there have been a few states where medical marijuana has been ordered reimbursed on the claim. The most developed state in this area is in New Mexico. They have had multiple decisions order reimbursement, and because of this the State has actually developed a fee schedule for medical marijuana which includes dosage guidelines. Maine, New Jersey and Massachusetts have also had cases in this area.

From an employment law standpoint, cases around the country have found that employers can terminate or not hire individuals using medical marijuana under their zero tolerance drug policy. The courts have consistently upheld these terminations under federal employment law. However, there was a recent case in Massachusetts that allowed the worker to pursue a discrimination claim for termination involving medical marijuana.

Another challenge is testing for impairment caused by marijuana. Current testing focuses on the presence of THC. However, this is metabolized by the liver and can stay in your system for several weeks. Thus, someone can test positive for marijuana in their system but that does not mean they are impaired. The medical form of marijuana (CBD) does not usually show up on drug tests unless you are specifically looking for that substance.

The CBD form of medical marijuana is subject to some regulatory oversight which includes controlling for concentration and dosages so they are standardized. This is not smoked and comes in the form of oils or gels. The regular form of marijuana (which is smoked) can have significant variations in the concentrations of the different substances.

There is very little science behind medical marijuana. Because of the limitations of the federal law, there has been very little research done on the actual impact of medical marijuana. Most of the conversation around this are anecdotal. However, the speaker has seen actual cases where injured workers weened themselves off of high dosages of opioids for pain control and switched to marijuana. Right now, there are really not many known side effects from medical marijuana. However, research is ongoing and we should start seeing some published studies soon.

There are many challenges to using medical marijuana in workers’ compensation. This includes the conflicting laws, banking challenges, overcoming stigma, controlling the dosages, and educating physicians on this as a possible treatment option.

In the workers’ compensation industry, we need to consider whether or not medical marijuana may be a viable alternative for opioids for certain individuals. Pain control is not a one-size-fits-all thing. There could be cases where medical marijuana could be an appropriate treatment option. We know the problems associated with opioids including addiction, costs, and health consequences. We owe it to ourselves to at least explore whether medical marijuana may make sense in certain circumstances.