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Workers Compensation Not Required to Cover Medical Marijuana

March 12, 2019
The 2017 Barbuto decision by the Massachusetts Supreme Judicial Court (SJC) made clear that employers must engage in the reasonable accommodation process for disabled employees who use medical marijuana and hold a medical marijuana card if the employee requests such an accommodation. 
While the employer is not required to permit the employee to use medical marijuana in the workplace or come to work under the influence of marijuana, the Barbuto decision represented a significant shift in how employers must address this relatively small cohort of employees. 
But what about situations in which the employee is on workers compensation? Are any special accommodations required then?
A recent Department of Industrial Accidents (DIA) Reviewing Board decision answered that question for the first time when it ruled that a workers compensation insurer is not required to reimburse an injured worker for medication costs when using medical marijuana to treat a workplace injury. The review board based its decision on the fact that the state medical marijuana law is preempted by federal law, specifically the Controlled Substances Act (CSA). 
One interesting fact in this case is that it was undisputed that the permanently and totally disabled injured worker was being helped by his use of marijuana. The original judge found that the employee had numerous positive benefits from using the drug - he slept better, it reduced his anxiety and anger and eliminated his use of opioids for the treatment of his injury. 
However, in affirming the DIA trial judge’s decision denying the coverage to the injured employee, the reviewing board stated that the CSA preempts Massachusetts law, meaning the insurer does not have to pay. The Reviewing Board noted that “the insurer (also) argues … that an order requiring it to pay for an employee’s medical marijuana would violate … the CSA and also subject it to additional criminal liability for violating the federal criminal aiding and abetting statute. The insurer’s argument … has merit.”
While the Massachusetts marijuana law provides a ‘safe harbor’ and protects medical marijuana users from prosecution under Massachusetts’ criminal law, it does not mean that the it can affirmatively require workers compensation insurers to violate federal law. 
The reviewing board made it clear that it does not suggest that the medical marijuana law is preempted in its entirety by the CSA. Rather it states that until marijuana is ‘legalized’ by the federal government, a workers compensation insurer (especially an out-of-state one, as in this case) ordered to pay for an employee’s medical marijuana pursuant to state law risks prosecution for violating the federal law, due to the sending of funds across state lines to pay for a federally illegal drug. Therefore, the reviewing board held that the medical marijuana law is preempted by the CSA.
It is unlikely this decision will be the last word on this issue and it is possible the ruling may move to the Appeals Court but for the moment this is the view of the agency that oversees the workers compensation system in Massachusetts. 
Members may call the AIM Employer Hotline at 800-470-6277 with questions about this or any other HR-related issue.
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