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Since 1970, marijuana has been listed as a Schedule I controlled substance under the Controlled Substances Act, making the possession and usage of marijuana illegal under federal law. Employers have traditionally relied on this classification of marijuana as an illegal drug when setting policies designed to keep workplaces safe and free from drug use. However, the legalization of medical marijuana in some states (20 and counting since 1996, plus the District of Columbia) has placed employers in these states, as well as state legislatures and courts, in a precarious position when trying to fashion and enforce workplace policies in light of a now-muddied legal landscape.
Medical marijuana is an evolving legal issue. And, the legalization of medical marijuana raises several issues specific to workers’ compensation including (1) compensation as a result of an injury; (2) an issue of causation; and, (3) insurance coverage as it relates to the cost of medical marijuana.
A recent article published by the LexisNexis® Legal Newsroom | Workers Compensation Law, addressed these 3 questions, excerpt provided below.
#1: Compensation as a result of an injury.
One large issue is whether an injury should be compensable if it is sustained while the employee had legal medical marijuana in his or her system. Although state workers’ compensation laws generally deny coverage for injuries caused by drug intoxication, some states, such as New Mexico and Alaska, have statutes specifically providing an exception when the drugs are taken under the direction or administration of a medical doctor.
#2: An issue of causation
In addition, an issue of causation arises if coverage is denied only when the employee was actually impaired at the time. According to Mark Walls who is Vice President Communications & Strategic Analysis for Safety National and served as moderator of the LexisNexis webinar, Up in Smoke? The Drug Law Evolution & The Workplace: Managing New Risks.Up in Smoke?, “The compensability issue will usually come down to a judge deciding whether or not the employee was impaired at the time of the accident and whether that impairment was the proximate cause of the injury.”
However, as Mark also noted, current drug testing protocols cannot provide a clear measure of impairment by marijuana use in the way that tests for alcohol intoxication can. While drug tests can measure the presence of THC in the system, these tests can register THC that is up to a month old, even though any impairing effect would have long passed.
#3: Insurance coverage as it relates to the cost of medical marijuana
Another key workers’ compensation issue is whether a workers’ compensation insurer will be required to cover the cost of medical marijuana. While few states have addressed this, most of the ones that have indicate that insurers are not required to cover this cost. However, in at least two states, Washington (discretion of insurance carriers) and New Mexico (covered if patient has registry identification card, supervision and monitoring, and caregiver and practitioner licensing), the costs of medical marijuana can be covered.
Access the complete article complementary of the LexisNexis® Legal Newsroom | Workers Compensation Law.