Workers Compensation & Medical Marijuana

Workers Compensation & Medical Marijuana

Medical MarijuanaAs one of 18 states that have legalized medical marijuana and one of only two that have legalized recreational marijuana, Washington State is on the national forefront of the legalization of cannabis.

How long until Washington employers see medical marijuana approved for use in Workers Compensation cases?

Could medical marijuana be approved for use in Workers Compensation cases?

Perhaps this sounds far-fetched, but this idea may not be that far out of the realm of possibility!

At this point in time, medical marijuana use in Workers Compensation cases is not specifically sanctioned by law anywhere in the country, but only four states have laws that clarify that insurers don’t have to reimburse for medical marijuana costs.

Recent court decision regarding medical marijuana & Workers Comp:

Last June, in California, a workers’ compensation judge ordered reimbursement to an injured worker for medical marijuana prescribed to him for his pain.

This was ultimately overturned on appeal, as it was found to violate California’s medical marijuana law, which stated that the law was not intended to require “governmental, private, or any health insurance provider or health care service plan to be liable for any claim for reimbursement for the medical use of marijuana.”

This is, undoubtedly, only the first of such cases we are going to see pass through the courts.

Could L&I approve reimbursement for medical marijuana in Washington State?

Is it possible, or conceivable, that L&I would consider reimbursement for the use of medical marijuana for the treatment of intractable pain caused by an on-the-job injury in Washington State?

Washington’s medical marijuana law states that only qualifying patients and their designated providers can legally possess marijuana.  Next year, they will be able to buy their marijuana in a state-approved store.  Patients can grow their own, or participate in a collective garden.  Even if a patient decides to grow their own, there are many expenses associated with setting up a grow operation.

Currently our law states that:

…nothing in this chapter establishes a right of care as a covered benefit or requires state purchased health care as defined in RCW 41.05.011 or other health carrier or health plan as defined in Title 48 RCW to be liable for any claim for reimbursement for the medical use of cannabis.

But pay attention to the rest of the paragraph:

Such entities may enact coverage or noncoverage criteria or related policies for payment or nonpayment of medical cannabis in their sole discretion.

It appears that L&I has the right and the power to cover medical marijuana. 

One might even take it a step further and conjecture that they would do so, believing that they are following the will of the public, as evidenced through our votes on this subject.

The once widespread fear that the feds will crack down on medical marijuana-friendly policies with a heavy hand seems to be fading, as the government demonstrates a reluctance to prioritize enforcement of marijuana infractions.

What are the consequences of L&I covering medical marijuana costs?

If this were to happen, it would create some interesting issues in the workplace!  Consider how it might play out at a company with a drug-free workplace policy.

The medical marijuana statute ensures that “employers may establish drug-free work policies.  Nothing in this chapter requires an accommodation for the medical use of cannabis if an employer has a drug-free work place.”

Imagine this scenario:  A worker at a drug-free company is injured on the job, and they can only control their intractable pain with medical marijuana.

In order to adhere to the company’s drug-free workplace policy, would the worker have to stay at home?  And if so, would they be eligible to receive time loss payments while they had to stay at home?

Or, would the company, which has the right to review the medical records related to the worker’s injury, be able to terminate the employee for violating its drug-free workplace policy?

The wrap-up:

Right now, one thing stands in the way of L&I covering medical marijuana costs:  Washington’s Administrative Code requires L&I to only consider reimbursement for drugs that are approved by the FDA.

Since the FDA has not yet approved marijuana’s medical usage,  we’re probably not going to be facing these questions today. However, given the speed with which legislation and public opinion about pot has changed, it’s very likely that this issue is going to crop up for employers in the near future.