Should workers' comp cover medical marijuana?
As states grapple with questions about coverage, they are also considering how to identify and address potential on-the-job impairment.
With the majority of states now having some form of medical marijuana laws on the books and 19 allowing recreational adult use, questions remain on how workers’ compensation systems should address the myriad of arising issues.
As seen recently in Pennsylvania, courts are grappling with the query of whether workers’ compensation should cover medical marijuana costs, according to the National Council on Compensation Insurance (NCCI). In the Keystone State case, the court ruled yes and ordered the injured worker to be reimbursed for previous medical marijuana costs and have future costs covered.
Similarly, supreme courts in New Jersey and New Hampshire ruled reimbursement is allowed for medical marijuana costs associated with workers’ compensation treatment, according to NCCI’s analysis of key developments regarding marijuana and workers’ comp. Additionally, a New York appellate court ruled reimbursement is required under the state’s medical marijuana law.
However, courts in Massachusetts and Arkansas found that workers’ comp systems should not be required to cover medical marijuana costs.
While a Pennsylvania judge did rule workers’ compensation could cover medical marijuana costs, a verdict that is an outlier among similar cases in the state, there is a bill pending in the state legislature that would change its laws to say workers’ comp insurers are not required to provide coverage, or reimbursement, for medical marijuana costs. Kentucky considered similar legislation, but it did not pass, while Alabama enacted a law that frees employers, property & casualty insurers and private health insurers from having to cover costs associated with medical cannabis use, NCCI reports.
Are you high?
Another big question roiling workers’ comp markets is determining if someone is under the influence of marijuana when an injury occurs and how that will impact the eligibility of workers’ comp benefits.
“Some states have standards for identifying marijuana impairment on the job. However, those standards differ from state to state,” Laura Kersey, NCCI’s executive director, regulatory & legislative analysis, tells PropertyCasualty360.com. “States also differ as to how they identify other types of on-the-job intoxication or impairment.”
She says states are considering how to address the potential impacts of legalized marijuana on workers’ compensation and how to determine whether someone is intoxicated from marijuana.
“Several states introduced legislation this year addressing standards for intoxication and the impact on workers’ compensation benefits if an employee is found to be impaired at the time of a work injury,” Kersey says.
Alabama and Montana have both enacted legislation establishing presumptions that states failing or refusing to take a drug test following an incident will lead to the assumption that the incident was caused due to the employee’s impairment or that marijuana use was the major contributing cause of the accident. Montana’s law applies only to recreational use, with exclusions for certified medical marijuana use.
A North Dakota law creates a rebuttal presumption that an injury was due to marijuana intoxication if the worker’s drug test is above a certain limit. Refusing a drug test automatically waves the injured workers’ rights to any “workplace safety and insurance benefits arising from the injury,” according to the NCCI.
Nevada enacted a law that establishes standards for determining when an employee is under the influence of a controlled or prohibited substance, including marijuana, for workers’ comp purposes. There is an exception for employees with current and lawful prescriptions.
Additionally, six other states considered legislation, which did not advance, that would have addressed the impact of medical marijuana on workers’ comp.
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