Bringing marijuana into the workplace
With increased legalization, employers and insurers may have to consider the impact of legal cannabis in the workplace and workers’ comp claims.
There are many ardent proponents of the medicinal qualities of cannabis. It has been recommended for a host of physical illnesses including:
- nausea and vomiting for those going through chemotherapy,
- to stimulate the appetites of those suffering from HIV/AIDS and other conditions,
- to help alleviate pain due to multiple sclerosis (MS) or other chronic conditions,
- to improve spasticity due to MS or paraplegia from spinal cord injuries, and
- to help manage depression, sleep disorders or anxiety among other maladies.
The challenges for physicians and insurers center on several issues: cannabis is still illegal on the federal level and state regulations vary widely, there are few scientific studies that have examined its efficacy across multiple illnesses, it is not regulated to the same degree as other medications, and there is still some stigma associated with its use and distribution.
In terms of whether or not to provide coverage for cannabis for workers’ compensation or health-related claims, there are no easy answers for insurers.
“Part of the coverage issue is that this is a completely unregulated drug with no meaningful prescription data,” explains Amy Donovan, vice president of legislative and regulatory affairs for Keenan. “How it is delivered affects its impact on an individual whether it’s ingested through an edible, used as an oil, vaped or smoked. It will take time to get this information and there will be a lot of confusion for a while.”
Donovan says that clarity on many of these issues is still a good 10-15 years away because many institutions are awaiting research approval. An investigation of existing information on the efficacy of cannabinoids for medical use by a team in the U.K. led by Penny Whiting, Ph.D. of the School of Social and Community Medicine of the University of Bristol, found that there was some evidence to “support the use of cannabinoids for the treatment of chronic pain and spasticity.” However, there was only “low-quality evidence suggesting that cannabinoids were associated with improvements in nausea and vomiting due to chemotherapy, weight gain in HIV infection, sleep disorders, and Tourette syndrome.” The researchers also found that cannabinoids could increase the effects of what they termed “adverse effects” in the short-term. At this point, there is still insufficient scientific data to determine what appropriate uses and dosing may be for patients.
There are definite concerns that medical marijuana is something that the insurance industry will be required to cover. Already there have been some preliminary claims and cases in New England, says Donovan. “It will take time and there will be a lot of push-pull between people in pain and carriers who are trying to do the right thing and be responsible. There isn’t a middle place until there is more clarity and research on the efficacy of these drugs.”
Covering workers’ comp claims
Federal, state and local laws have not been updated to keep up with the issues surrounding the legalization of marijuana. However, when it comes to covering workers’ comp-related injury claims, insurers may have some guidance from their alcohol and drug policies. Aaron Sussman, a senior associate in the California office of Clyde & Co., says that companies cannot deny a workers’ comp claim on the basis of intoxication, and the same case could be made for impairment due to the use of legal cannabis. “There are a lot of cases that establish that intoxication means the employee was impaired as a result of the alcohol or drug and that the injury resulted as a proximate cause of that intoxication. However, you cannot deny a workers’ comp claim because of that, although you could terminate an employee because of it.”
Sussman also says that just because a legal or illegal substance is found in the body, it doesn’t mean that person was impaired, although it could raise questions as to whether or not the substance contributed to the impairment. “You can’t deny based on the fact that it was in the system. You have to show they were acutely intoxicated at the time of the test. Zero tolerance is fine for employers, but not for workers’ comp.” Since only blood tests can prove marijuana was even in someone’s system, proving a worker was physically impaired could be a challenge for an employer. In addition, since workers’ comp is predicated on a no-fault system, unless an employer can prove that a worker was intentionally intoxicated or affected by marijuana, it would be almost impossible to deny a related claim.
Nancy Bewlay, chief underwriting officer for AXA XL says that reputational risk for carriers who cover marijuana-related claims is also a consideration. “They want to make sure they are compliant with federal regulations and follow the letter of the law,” she explains. “Companies can also look at marijuana from a pharmaceutical perspective. There are risks to underwriting opioids and other drugs, particularly when they are being used in an unintended way by individuals.”
While insurers are still wary about providing coverage for medical marijuana, the good news is there has not been a huge rise in the number of on the job injuries related to increased use. “Most reasonable people do not use drugs or alcohol before they go to work,” says Sussman. “However, it will be a complication. The risk is more in the employers thinking they have a reason to deny claims and the burden to deny them is very high, almost impossible.”
Donovan concurs. “If you’re impaired, you’re impaired. Employers are not viewing it differently from alcohol, but it does complicate things because it will be a new issue.”
The difficulties for employers arise when an employee arrives at work and tests positive for legal cannabis used during non-working hours. Could these employees still be under the influence because of regular use or the method of ingestion? For positions that could pose a danger to others such as machinery operators, delivery drivers, taxi drivers and various trades, employers will need to have policies in place to address these safety issues.
So far, courts in multiple jurisdictions have upheld employers who fired employees who tested positive for marijuana even though it was legal in that state. Courts in Colorado, California, Oregon, and Washington have said that since marijuana is illegal on the federal level, it was not a “lawful” activity.
However, employers should be aware that some states are legislating that employees cannot be fired for cannabis use on personal time. In addition, prospective employees should not be overlooked because they tested positive for marijuana. These are new issues that will have to be addressed on the employer, state and federal levels.
The conflicts between state and federal laws will continue to raise questions about what is acceptable in the workplace and what cannabis-related claims must be covered. Seeking wise legal counsel is probably a good place to start for any employer.
Patricia L. Harman (pharman@alm.com) is the editor in chief of Claims magazine.
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