Healthcare is a major industry in the United States, and advances are frequently made in medical technology, genetics, and pharmaceuticals. Medical Marijuana is one area where there have been many recent advancements. These advancements include not only medically and understanding how marijuana can help treatment a variety of conditions, but also in the law. When an employee sustains a work-related injury, he or she may be prescribed medical marijuana to address their injury. As an employer, it is important for you to understand how medical marijuana fits in the workers’ compensation system.
California Labor Code section 4600 states that any treatment that is reasonably required to cure an injury or relieve the employee from the effects of the injury will be covered under workers’ compensation. The Workers’ Compensation Appeals Board has determined that this can include medical marijuana. Naturally, a worker must receive prescription from a doctor for the costs to be covered. Moreover, if the treatment plan includes medical marijuana, the plan is subject to independent medical review and utilization review to make sure that independent providers agree the marijuana is medically necessary to address the work related injury.
There are some other important issues to be aware of. First, although California has passed law legalizing the use of medical marijuana, marijuana remains illegal under federal law. Although these federal laws are not typically enforced in terms of medical marijuana dispensaries, this does not change the fact that the possession and sale of marijuana – even for medical use – remains illegal under federal law.
In addition, just because an employee is using medical marijuana, that does not mean he or she is not subject to certain restrictions. Just as an employee taking prescribed opiates may not be a suitable person to continue to operate heavy machinery, an employee may not be able to use medical marijuana during the work day. Employers also need to keep in mind that there are rules about when an employer can require drug testing. In addition, firing an employee for testing positive for medical marijuana can run afoul of regulations under the Americans with Disabilities Act.
We have extensive experience with the workers’ compensation system and explaining an employer’s rights and responsibilities. Contact us today for a consultation.
Medical marijuana is becoming more and more common across the United States, and California is no exception. Supporters of medical marijuana proclaim its effectiveness against diseases and chronic pain, and some studies support these claims. Some workers who have sustained work-related injuries are seeking treatment that may include medical marijuana. The use of medical marijuana as a treatment for work-related injuries and whether workers’ compensation covers this type of treatment is not yet resolved. Many states have come to different conclusions, and California does not yet have a definite answer.
In Cockrell v. Farmers Insurance, an injured worker had chronic pain from a work-related injury sustained while working at Farmers Insurance. The worker requested that his medical marijuana prescription, which was given to help deal with this pain, be covered by his workers’ compensation benefits. The Workers’ Compensation Appeals Board held that California Health and Safety Code § 11362.7 protected Farmers Insurance from having to cover the medical marijuana. The WCAB based its ruling on the fact that the statute states that a health insurance provider is not liable for reimbursing for medical use of marijuana. However, the case was then sent back to the trial level to determine if a workers’ compensation carrier is a health insurance company, and whether it is accordingly exempt from covering medical marijuana claims.
Medical marijuana is further complicated by the fact that marijuana is illegal under federal law, and is classified as a Schedule I drug. An employer should therefore be cautious when an injured worker returns to work if he or she has a prescription for medical marijuana. It is difficult to determine whether a worker is “impaired” under the use of marijuana. While this could also be said of other pain relievers, such as opioids, because marijuana is illegal under federal law, an employer should be certain to take extra precautions to make sure all workers are safe. Employers should also make sure to review their policies in place to make sure they are current with the latest in state and federal guidelines about the use of medical marijuana in the workplace and whether medical marijuana is covered under workers’ compensation claims.
If you have questions about medical marijuana and workers’ compensation, call me today at (714) 516-8188. This is an unresolved area of law and you need an experienced attorney working with you to protect your business.