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Should Workers Compensation Cover Medical Marijuana?

February 10, 2020
 
Should workers compensation insurance be required to cover medical marijuana used by an injured worker? The Massachusetts Supreme Judicial Court will decide that question later this year. 
 
The intersection of workers compensation and medical marijuana was perhaps inevitable. The Massachusetts medical marijuana law provides that individuals may use it to treat certain enumerated medical conditions, and “other debilitating conditions as determined in writing by a Qualifying Patient's healthcare provider.”
 
The summary of the case is as follows: A worker gets injured. The worker believed he could compel a worker’s compensation insurer to pay for his medical marijuana, which he believes is necessary to treat his injury. After the employee’s claim was denied in the workers compensation dispute-resolution system, the injured worker appealed to the courts and the state Supreme Judicial Court agreed to hear the case.
 
The parties have submitted written arguments stating why the court should rule in their favor. 
 
The employee argues that denying him access to medical marijuana would create a second class of injured workers who would be forced to use less-effective methods to address the pain from their injuries. 
 
The workers compensation insurer claims that the injured worker may not compel the carrier to pay for this medical treatment because the federal Controlled Substances Act (CSA) of 1970 preempts Massachusetts' medical marijuana law. The carrier also argues that no aspect of the state’s medical marijuana law requires insurers to reimburse workers for using marijuana.
 
Case History
 
The original ruling in the dispute was handed down by the Department of Industrial Accidents Review Board denying that the insurance company be compelled to pay for medical marijuana because it would violate the CSA.
 
The Review Board acknowledged that while state laws around the country are supportive of the use of medical marijuana (33 states have some law permitting the use of medical marijuana) the CSA continues to make it illegal because it is a controlled substance. 
 
The review board cited a June 2018 decision from Maine's Supreme Judicial Court, which found any order requiring an employer to compensate a worker for medical marijuana would force a violation of the CSA.
 
Splits among the jurisdictions
 
But a victory for the insurer is by no means guaranteed in a case like this.
 
While the Maine Supreme Court ruled in favor of the insurer, New Jersey ruled last month that workers compensation carriers must reimburse the injured employee for the purchase of medical marijuana. The New Jersey ruling is that it considered the CSA argument as well and rejected it. 
 
The trend toward rejecting the CSA argument has some recent history to it. Courts in Connecticut (2019), New Hampshire (2019), Minnesota (2018) and New Mexico (2014, 2015) have also considered the same issue and ruled in an employee’s favor. Other states including Pennsylvania are considering similar medical marijuana questions regarding workers compensation injuries.
 
Florida, Michigan and North Dakota have passed state statutes prohibiting reimbursement for medical marijuana base claims.
 
Final thoughts
 
Given the disagreement among different jurisdictions around the country, it is anybody’s guess which way the Massachusetts courts will go. Employers and workers compensation carriers will need to watch this case closely as the year goes on.
 
AIM members with questions about this or other human resources issues may call the AIM Employer Hotline at 800-470-6277. 
 
 
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