Why Medicinal Marijuana Makes Workers’ Compensation Claims Tricky

Marijuana is now legal for medicinal purposes in 34 states and recreational use in ten. There is a shifting tide of opinion regarding the use of cannabis, as more states and municipalities are pushing for legalization and even retroactive criminal sentence reductions. This sentiment is making workers’ compensation claims involving marijuana a minefield for employers due to lawsuits in several states.

Cannabis laws and work comp regulations are currently being decided on a state by state basis, even though federal law explicitly classifies the drug as a Schedule I narcotic. Insurers in New Mexico, Oklahoma and Michigan have been taken to court for denying work comp claims based on an employee testing positive for cannabis following an injury.

Decentralized Marijuana Regulations

With a lack of legal precedent, there are questions about workers’ compensation coverage for medicinal marijuana prescribed in response to a workplace injury. And because THC—the active ingredient in marijuana—can stay in the body for weeks after use, states where cannabis is legal are undecided on how to address a positive test after a workplace injury.

In Oklahoma, for example, an employee cannot be denied workers’ compensation benefits even if THC is present in their system at the time of the incident. The court believes that a positive drug test alone does not prove someone was high at the time of the injury. The state requires a higher burden of proof for organizations and work comp insurers who seek to partially or fully deny employee coverage because of marijuana usage.

A Possible Pain Management Alternative

Legalizing marijuana usage for its possible medical benefits, especially when treating pain, continues to be a popular argument. In states taking a more progressive stance on its use, many experts see cannabis as a healthier option than opioids for treating chronic pain.

At this time, though, there is minimal consensus on the long-term effects of marijuana, and the drug’s current federal legal status makes research and control difficult.

Future Changes

The shifting tide may cause short-term upheaval in the insurance market as organizations adapt to shifting laws and regulations. Confusion as to whether work comp programs are required to cover medical marijuana and how to administer and evaluate post-accident drug tests will likely continue absent new federal rules and regulations.

States set cannabis regulations on an individual basis, meaning companies cannot assume that federal law criminalizing the drug automatically means workers’ compensation rules are the same nationwide. Organizations should familiarize themselves with worker’s compensation laws in each state where they do business, a task easier said than done in a time when regulations are changing daily.

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