Dazed And Confused About Medical Marijuana And The Pa Workers’ Compensation Act

by Abigail Gross

On April 17, 2016, Governor Tom Wolf signed “The Medical Marijuana Act” (MMA) into law. That law went into effect in January 2018.

While you may (or may not) agree with the use of medical marijuana, there are thousands of patients who are eagerly using their card at dispensaries across the state. Over the past two years, more than 100,000 patients have been certified, and more than 60 state-approved dispensaries have opened.

So, what does the use of medical marijuana mean to an injured worker in Pennsylvania?

Short answer: a lot.

Under the MMA, physicians who have been certified by the Department of Health can recommend (not prescribe) medical marijuana to patients with one of 22 serious medical conditions. Several of those qualifying medical conditions – including neuropathies and severe chronic or intractable pain – are relatable to workers’ compensation claims.

Notwithstanding the state legality of medical marijuana, barriers still exist in the employment arena – particularly when it comes to workers’ comp. The first issue is whether the use of medical marijuana gives an employer a viable defense to an otherwise compensable claim.

Under the PA Workers’ Compensation Act, employers are responsible for injuries that occur in the course of employment. However, there are exceptions to liability. For example, if an employee was violating the law when he/she was injured, the employer has a defense to the claim. The Act specifically cites the illegal use of drugs as one such violation of the law. Additionally, injuries that occur due to an employee’s intoxication are excluded. But if an employee has a valid medical marijuana card – what law are they violating?

Medical marijuana legally obtained and used under the provisions of the MMA is not a violation of state law. However, marijuana, including medical marijuana, remains illegal under federal law. So, can an employer still invoke a “violation of law” defense to a Pennsylvania work injury? Probably not. Workers’ compensation is a state matter. Thus, state law should dictate whether a claimant is in violation of the law. But this may not prevent your employer from conducting a drug screen post-injury or otherwise enforcing an employment policy. After all, should you really be operating heavy equipment at a job site if you have cannabis in your system? In fact, medical marijuana must be labeled with various information and warnings, including, “This product might impair the ability to drive or operate heavy machinery.”

Further complicating the issue is Pennsylvania’s DUI laws, which establish that it is illegal to operate a vehicle if there is any level of a Schedule I drug in your system. This appears to be a real problem for employers that have employees driving company vehicles.

Moving past marijuana use as a defense to a workers’ compensation claim, questions also exist as to whether an insurance carrier is required to pay for medical marijuana for an injured worker. Under the PA Workers’ Compensation Act, carriers are required to pay for reasonable and necessary treatment, including medication. However, marijuana is still a Schedule I drug under federal law, and carriers universally exclude medical marijuana from coverage. Section 2102 of the MMA specifically states, “Nothing in this act shall be construed to require an insurer or a health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana.” While the PA Workers’ Compensation Act is silent as to the issue of reimbursement, several other states (Arizona, Florida, and Illinois) have written into their medical marijuana laws that workers’ comp carriers are not required to reimburse workers for medical marijuana use for work injuries.

Even though carriers may have a legal basis to deny payment for medical marijuana, some offer reimbursement to the injured worker. Given the current opioid crisis and the escalating costs of prescription medication, there is a financial incentive for a carrier to reimburse the modest monthly cost of a marijuana prescription. In January of this year, a New Jersey appeals court ruled that a contractor was required to reimburse a former employee for the cost of the medical marijuana that he uses to treat his incessant pain from a work-related injury. Given the addictive nature of opioids, it seems that it would benefit both the injured worker and insurance companies if the carrier would be obligated to pay for medical marijuana prescriptions.

As you can see, medical marijuana is certainly a “hot topic” in the workers’ compensation arena. While insurance carriers and attorneys try to speculate on what liabilities exist, there is little guidance from the Court. Indeed, many practitioners are waiting for that seminal case to further identify the rights of the injured worker and the obligations of the employer when it comes to the interpretation of the MMA. Whatever the outcome, the focus should remain on workplace safety and advancing the humanitarian purpose of the Workers’ Compensation Act.

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