Medical marijuana leaves workers’ comp in cloud of confusion

Gillespie noted that, in most states, the law says insurers have to pay “for reasonable and necessary expenses that are proven to be efficacious.”

“I think that most insurance companies have probably taken the position that medical marijuana has not been conclusively found to be an efficacious treatment,” he said.

Of course, when that happens, “if the insurer says it will not pay, then the worker would be at risk for paying for it. In most jurisdictions, the carrier pays for treatment or nobody pays. There’s not supposed to be cost-shifting,” he said.

As might be expected, the big concern about medical marijuana, according to Gillespie and Lovgren, is its impact on safety and productivity in the workplace.

“Just because you’re taking medical marijuana for medical use doesn’t means it’s safe to use on your job,” Gillespie said.

More to the point, if employers or insurance companies pay for medical marijuana they might become liable for additional injuries caused by drug intoxication, Lovgren said.

She noted that, according to the National Institute on Drug Abuse, “marijuana has the potential to cause or exacerbate problems in daily life, including increased absences, tardiness, accidents, workers’ compensation claims and job turnover.”

And an employee who can legally use medical marijuana while off duty may still face consequences, including termination, for arriving at work with a detectible amount of marijuana in his or her system, she said.

So far, when courts have issued rulings related to medical marijuana and the workplace, they have been in the employer’s favor. 

• In Casias v. Wal-Mart Stores Inc., the U.S. Court of Appeals for the 6th Circuit ruled that a Michigan employee who was fired by Wal-Mart after testing positive for validly obtained medical marijuana cannot sue the company for violation of the Michigan Medical Marihuana Act because the law does not regulate private employment.
• In Roe v. Teletech Customer Care Management, the Washington Supreme Court ruled that the state’s Medical Use of Marijuana Act does not protect medical marijuana users from adverse hiring or disciplinary decisions based on an employer’s drug test policy.
• In Ross v. RagingWire Telecommunications Inc., the California Supreme Court ruled that it is not discrimination to fire an employee for using medical marijuana. RagingWire terminated the plaintiff’s employment based on a positive test for marijuana even though the employee had provided a doctor’s note explaining that he was prescribed marijuana to alleviate back pains. 
• In Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries, the Oregon Supreme Court ruled that because federal criminal law preempts Oregon’s medical marijuana law, employers in the state do not have to accommodate employees’ use of medical marijuana.