How the legalization of marijuana affects the employer-injured worker dynamic

What does an employer need to know when dealing with an injured worker who is also using medical marijuana?

The impact on drug testing

Most employers require post-accident drug testing as a means of promoting workplace safety. Under a typical drug testing policy, a positive test equates to a determination that the employee was under the influence. Discipline often follows. But, what if the employee is using medical marijuana?

Related: Medical marijuana & workers’ comp: Burning questions that need answers

An employee’s use of medical marijuana likely will not change the result of the test. If a sample contains levels of THC above the cutoff, the test will be positive for marijuana regardless of the reason for use. In 2017, the U.S. Department of Transportation issued an updated “medical marijuana notice” making clear that marijuana, in all forms, remains illegal under federal law.

Accordingly, the notice provides that “medical review officers will not verify a drug test as negative based upon information that a physician recommended that the employee use ‘medical marijuana’ …” Because most MROs follow DOT testing guidelines for all drug tests to ensure consistency, even when a non-DOT regulated employee tells the MRO that he/she is certified to use medicinal marijuana, the MRO will nonetheless certify the test as positive.

Post-accident drug testing

Accordingly, how an employer treats a positive result for an injured worker who is using medical marijuana will depend, in large part, on three factors:

• Whether the employee is a certified user under state law at the time of the test. Only medicinal use in accordance with the provisions of the Pennsylvania MMA is legal use of marijuana.
• How the employer’s policy defines “under the influence” and whether the employer reasonably believes the employee was impaired at the time of the accident/incident.
• Whether there are any other violations of the drug testing policy (i.e., employees who are taking medication with certain side effects must obtain a certification that the medication will not impact the safe performance of the job, and the employee did not obtain a certification for medical marijuana use).

Generally, courts have sided with the employer regarding discipline for post-accident drug testing, even when the employee is a certified medical marijuana user. See Cotto v. Ardagh Glass Packing, (Dist. N.J., 2018); Carlson v. Charter Communications, (Dist. Mont. 2017) and Lambdin v. Marriott Resorts Hospitality (Dist. Hawaii 2017). However, these are not Pennsylvania courts, the language of each state’s medical marijuana act differs and there is nothing compelling a Pennsylvania court to follow these rulings. Accordingly, employers would be wise to consult counsel before disciplining a medical marijuana user for a positive drug test.

Coverage under the Pennsylvania Workers’ Compensation Act

Under Pennsylvania state law, payment of work-related medical expenses is to be made within 30 days of the receipt of bills and records from the health care provider. The exception is where the employer or its insurer dispute the reasonableness and necessity of the treatment and follow procedure for submitting objectionable charges to a utilization review organization.

Pennsylvania law also establishes certain fee caps for medical treatment (see, e.g. Section 306 (f.1)(3)(vi)), and limits reimbursement of prescription drugs and professional pharmaceutical services to 110% of the average wholesale price of the product.

However, pursuant to Section 2102 of the Pennsylvania MMA, insurers and health plans are not required to provide coverage for medical marijuana. Section 2102 is consistent with a nationwide consensus that medicinal cannabis need not be covered under health insurance. Section 2102 is broadly written and supports an argument that neither a workers’ compensation insurer nor a self-insured employer should be compelled to directly reimburse a health care provider or dispensary for “coverage” relating to medical marijuana.

But what about reimbursement to the injured worker for out-of-pocket expenses?

Notably, the Workers’ Compensation Act does permit reimbursement of certain out-of-pocket expenses that are otherwise reimbursable under the act. However, an employee seeking reimbursement of medical marijuana costs will likely face several formidable arguments, including the following:

• Compelling the insurer or self-insured employer to reimburse out-of-pocket medical expenses is merely a “back-door” attempt to circumvent Section 2102 of the MMA;
• Other noncovered forms of “medical treatment” do not become covered and reimbursable, simply because the employee has paid for them out-of-pocket (i.e., massage therapy by a licensed massage therapist; Ayurvedic treatment performed in India, etc.). Indeed, the Massage Therapy Law, passed in 2008, provided for the licensing of massage therapists but states that this provider status “shall not be construed as requiring new or additional third party reimbursement or otherwise mandating coverage under … the Workers’ Compensation Act;” a provision which is quite similar to Section 2102 of the MMA;
• A medical marijuana “recommendation” from a provider is not the same as a medical “prescription,” written on a federal form and governed by federal law. Hence, medical marijuana cannot, by definition, be a prescription drug;
• Under federal law, marijuana remains classified as a Schedule I drug—it is illegal to ingest or distribute and has no recognized medical use;
• Compelling an insurer or employer to reimburse an employee or provider for an illegal substance, is tantamount to requiring the carrier to aid and abet the employee or provider in violating federal law.

Accordingly, absent legislative amendment of the Pennsylvania Workers’ Compensation Act or federal law, it’s difficult to picture an environment in which insurers and self-insured employers will welcome the routine reimbursement of costs related to medical marijuana. But, suppose a carrier wishes to reimburse medical marijuana in a given case for strategic reasons, such as weaning an opioid addicted claimant from more dangerous substances, in order to avoid the risk and exposure of an overdose.

• Is this permissible under the MMA and Workers’ Compensation Act?
• Does such reimbursement establish a precedent to pay for medical marijuana in other qualifying cases?

There are several ways that medical marijuana could help with the nationwide opioid crisis, including reduction in deaths, relief from withdrawal symptoms and prevention of opioid addiction. Studies published by the Philadelphia Veterans Affairs Medical Center (October 2014) and Journal of Neuroscience, have established that states with medical marijuana laws have a 25% lower mean annual opioid overdose mortality rate, as compared to states without medical cannabis laws.

Related: Using medical marijuana to treat construction workplace injuries

Additionally, 60% of opioid overdoses occur among patients with legitimate prescriptions from a single provider — a cohort which could benefit from a clinically safer alternative such as medical marijuana. The studies also suggest that a component of marijuana, called cannabidiol, can reduce cravings and prevent relapses among recovering opioid addicted individuals.

Legally, neither the MMA nor the Workers’ Compensation Act explicitly prohibit an insurer or self-insured employer from voluntarily reimbursing costs associated with medical marijuana. It would be prudent, of course, to require proof that the recommendation for medical marijuana relates to a covered condition and that its use is reasonable and necessary to reduce pain, increase physical activity or to decrease or eliminate the use of other more dangerous medications.

As far as setting a precedent for future payments, there is a long-standing case law rule in workers’ compensation practice, that the voluntary payment of medical expenses is not an admission of liability, see Securities Security Services USA v. Workers’ Compensation Appeal Board, 16 A.3d 1221 (Pa. Commonwealth 2011).

Accordingly, there would appear to be little risk of binding precedent, should a carrier decide to accept certain medical marijuana costs as reimbursable, while denying others.

Modified duty for the medical marijuana user

What impact might medical marijuana use have on modified duty programs for injured workers?

The Pennsylvania Medical Marijuana Act does not require an employer to accommodate the use of medical marijuana while the employee is on the employer’s premises. Likewise, employers may prohibit certified users from performing certain safety-sensitive jobs while “under the influence” of medical marijuana.

Finally, the MMA does not require employers to “commit an act that would put the employer or any person acting on its behalf in violation of federal law.” In the simplest of terms, this means that employers may:

• Implement or continue to enforce policies preventing medical marijuana use during work hours;
• Prohibit an employee actively using medical marijuana from performing jobs identified as safety sensitive; and
• Prohibit an employee actively using medical marijuana from performing jobs regulated by federal law, such as jobs requiring an active CDL.

However, employers must also be cautious of the MMA’s anti-discrimination provision — “No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against any employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana” where an employer offers modified duty, even if on a limited basis, as a means of controlling cost exposure in workers’ compensation, the employer may run afoul of Section 2103(b)(1) if they outright refuse to offer modified duty to an injured worker treating with medical marijuana.

At the very least, an employer should engage in discussion with the employee to determine if his/her use of medical marijuana, outside of work, can be accommodated in the modified duty position. For the employee who still requires a CDL to perform the modified duty job, accommodation likely will not be necessary. For the employee who will be stickering boxes in a shipping department, accommodation might be prudent.

Finally, whether an injured worker should be denied workers’ compensation wage loss benefits because his/her medical marijuana use prevents participation in a modified duty program, will depend on a careful examination of the background facts.

Generally, once an employee establishes that a work-related injury prevents a return to her time-of-injury job, a loss of earning capacity has been established. The employee is entitled to benefits, unless the employer can demonstrate the availability of work within her restrictions, which work would have been available, but for the employee’s lack of good faith, see Vista International Hotel v. Workers’ Compensation Appeal Board (Daniels), 742 A.2d 649 (Pa Supreme Court 2000).

The employer bears the burden of proving the alleged disqualifying employee conduct. It remains to be seen whether use of medical marijuana, either before the injury or because of the injury, where the employee had/has knowledge that such use may disqualify him/her from employment would constitute “lack of good faith” under the law.

Unfortunately, for employers navigating the interplay between these two Pennsylvania acts, there may be more questions than answers for the foreseeable future. For now, employers should evaluate each matter on its facts and should work collectively with their insurance carrier/adjustor and counsel to navigate the process.

Related: How medical marijuana complicates workplace policies for employers

Denise Elliott (delliott@mcneeslaw.com) practices in McNees Wallace & Nurick’s labor and employment practice group and focuses on defending self-insured employers in workers compensation matters and providing representation and counsel to clients in employment discrimination litigation, ADA/FMLA compliance, drug testing, safety and health issues.

Paul Clouser (pclouser@mcneeslaw.com) practices in the firm’s labor and employment practice group. He handles employer problems with a focus on workers’ compensation. He has over 25 years of litigation experience and represents numerous self-insured employers and third party administrators in Workers’ Compensation matters throughout Central Pennsylvania.