Generally,courts have sided with the employer regarding discipline forpost-accident drug testing, even when the employee is a certifiedmedical marijuana user. (Photo: Shutterstock)

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

The impact on drug testing

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

Related: Medical marijuana & workers' comp: Burningquestions that need answers

An employee's use of medical marijuana likely will not changethe result of the test. If a sample contains levels of THC abovethe cutoff, the test will be positive for marijuana regardless ofthe reason for use. In 2017, the U.S. Department of Transportationissued an updated "medical marijuana notice" making clear thatmarijuana, in all forms, remains illegal under federal law.

Accordingly, the notice provides that "medical review officerswill not verify a drug test as negative based upon information thata physician recommended that the employee use 'medical marijuana'…" Because most MROs follow DOT testing guidelines for all drugtests to ensure consistency, even when a non-DOT regulated employeetells 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 aninjured worker who is using medical marijuana will depend, in largepart, on three factors:

• Whether the employee is a certified user under state law at thetime of the test. Only medicinal use in accordance with theprovisions of the Pennsylvania MMA is legal use of marijuana.
• How the employer's policy defines "under the influence" andwhether the employer reasonably believes the employee was impairedat the time of the accident/incident.
• Whether there are any other violations of the drug testingpolicy (i.e., employees who are taking medication with certain sideeffects must obtain a certification that the medication will notimpact the safe performance of the job, and the employee did notobtain a certification for medical marijuana use).

Generally, courts have sided with the employer regardingdiscipline for post-accident drug testing, even when the employeeis a certified medical marijuana user. See Cotto v. ArdaghGlass Packing, (Dist. N.J., 2018); Carlson v. CharterCommunications, (Dist. Mont. 2017) and Lambdin v.Marriott Resorts Hospitality (Dist. Hawaii 2017). However,these are not Pennsylvania courts, the language of each state'smedical marijuana act differs and there is nothing compelling aPennsylvania court to follow these rulings. Accordingly, employerswould be wise to consult counsel before disciplining a medicalmarijuana user for a positive drug test.

Coverage under the Pennsylvania Workers' Compensation Act

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

Pennsylvania law also establishes certain fee caps formedical treatment (see, e.g. Section 306 (f.1)(3)(vi)), and limitsreimbursement of prescription drugs and professional pharmaceuticalservices 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 formedical marijuana. Section 2102 is consistent with a nationwideconsensus that medicinal cannabis need not be covered under healthinsurance. Section 2102 is broadly written and supports an argumentthat neither a workers' compensation insurer nor a self-insuredemployer should be compelled to directly reimburse a health careprovider or dispensary for "coverage" relating to medicalmarijuana.

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

Notably, the Workers' Compensation Act does permit reimbursementof certain out-of-pocket expenses that are otherwise reimbursableunder the act. However, an employee seeking reimbursement ofmedical marijuana costs will likely face several formidablearguments, including the following:

• Compelling the insurer or self-insured employer to reimburseout-of-pocket medical expenses is merely a "back-door" attempt tocircumvent Section 2102 of the MMA;
• Other noncovered forms of "medical treatment" do not becomecovered and reimbursable, simply because the employee has paid forthem out-of-pocket (i.e., massage therapy by a licensed massagetherapist; Ayurvedic treatment performed in India, etc.). Indeed,the Massage Therapy Law, passed in 2008, provided for the licensingof massage therapists but states that this provider status "shallnot be construed as requiring new or additional third partyreimbursement or otherwise mandating coverage under … the Workers'Compensation Act;" a provision which is quite similar to Section2102 of the MMA;
• A medical marijuana "recommendation" from a provider is not thesame as a medical "prescription," written on a federal form andgoverned by federal law. Hence, medical marijuana cannot, bydefinition, be a prescription drug;
• Under federal law, marijuana remains classified as a Schedule Idrug—it is illegal to ingest or distribute and has no recognizedmedical use;
• Compelling an insurer or employer to reimburse an employee orprovider for an illegal substance, is tantamount to requiring thecarrier to aid and abet the employee or provider in violatingfederal law.

Accordingly, absent legislative amendment of the PennsylvaniaWorkers' Compensation Act or federal law, it's difficultto picture an environment in which insurers and self-insuredemployers will welcome the routine reimbursement of costs relatedto medical marijuana. But, suppose a carrier wishes to reimbursemedical marijuana in a given case for strategic reasons, such asweaning 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' CompensationAct?
• Does such reimbursement establish a precedent to pay formedical marijuana in other qualifying cases?

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

Related: Using medical marijuana to treat constructionworkplace injuries

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

Legally, neither the MMA nor the Workers' Compensation Actexplicitly prohibit an insurer or self-insured employer fromvoluntarily reimbursing costs associated with medical marijuana. Itwould be prudent, of course, to require proof that therecommendation for medical marijuana relates to a covered conditionand that its use is reasonable and necessary to reduce pain,increase physical activity or to decrease or eliminate the use ofother more dangerous medications.

As far as setting a precedent for future payments, there is along-standing case law rule in workers' compensation practice, thatthe voluntary payment of medical expenses is not an admission ofliability, 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 bindingprecedent, should a carrier decide to accept certain medicalmarijuana costs as reimbursable, while denying others.

Modified duty for the medical marijuana user

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

The Pennsylvania Medical Marijuana Act does not require anemployer to accommodate the use of medical marijuana while theemployee is on the employer's premises. Likewise, employers mayprohibit certified users from performing certain safety-sensitivejobs while "under the influence" of medical marijuana.

Finally, the MMA does not require employers to "commit an actthat would put the employer or any person acting on its behalf inviolation of federal law." In the simplest of terms, thismeans that employers may:

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

However, employers must also be cautious of the MMA'santi-discrimination provision — "No employer may discharge,threaten, refuse to hire or otherwise discriminate or retaliateagainst any employee regarding an employee's compensation, terms,conditions, location or privileges solely on the basis of suchemployee's status as an individual who is certified to use medicalmarijuana" where an employer offers modified duty, even if on alimited basis, as a means of controlling cost exposure in workers'compensation, the employer may run afoul of Section 2103(b)(1) ifthey outright refuse to offer modified duty to an injured workertreating with medical marijuana.

At the very least, an employer should engage in discussion withthe 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 modifiedduty job, accommodation likely will not be necessary. For theemployee 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 marijuanause prevents participation in a modified duty program, will dependon a careful examination of the background facts.

Generally, once an employee establishes that a work-relatedinjury prevents a return to her time-of-injury job, a loss ofearning capacity has been established. The employee is entitled tobenefits, unless the employer can demonstrate the availability ofwork within her restrictions, which work would have been available,but for the employee's lack of good faith, see VistaInternational Hotel v. Workers' Compensation AppealBoard (Daniels), 742 A.2d 649 (Pa Supreme Court2000).

The employer bears the burden of proving the allegeddisqualifying employee conduct. It remains to be seen whether useof medical marijuana, either before the injury or because of theinjury, where the employee had/has knowledge that such use maydisqualify him/her from employment would constitute "lack of goodfaith" under the law.

Unfortunately, for employers navigating the interplay betweenthese two Pennsylvania acts, there may be more questions thananswers for the foreseeable future. For now, employers shouldevaluate each matter on its facts and should work collectively withtheir insurance carrier/adjustor and counsel to navigate theprocess.

Related: How medical marijuana complicates workplacepolicies for employers

DeniseElliott ([email protected]) practicesin McNees Wallace & Nurick's labor and employment practicegroup and focuses on defending self-insured employers in workerscompensation matters and providing representation and counsel toclients in employment discrimination litigation, ADA/FMLAcompliance, drug testing, safety and health issues.

Paul Clouser ([email protected])practices in the firm's labor and employmentpractice group. He handles employer problems with a focuson workers' compensation. He has over 25 years of litigationexperience and represents numerous self-insured employers and thirdparty administrators in Workers' Compensation matters throughoutCentral Pennsylvania.