With 23 states and the District of Columbia having legalized the use of medical marijuana, employers and insurance companies are wondering if they soon may be asked to cover medical marijuana as part of their workers’ compensation claims. Although there is no definitive answer right now, it’s important to shed light on the various issues affecting the use of medical marijuana in workers’ compensation.
Currently, there are several factors hindering adoption:
1. Illegal at federal level. The Controlled Substances Act (CSA) of 1970 classifies marijuana as a Schedule I substance, making it illegal to cultivate, distribute or possess the drug.
2. No FDA approval. Medical marijuana is not viewed as safe or effective by the U.S. Food & Drug Administration (FDA).
3. Lack of proof of efficacy. Current literature documents various uses of medical marijuana, but a large-scale randomized and controlled human clinical trial has not yet been conducted to verify these benefits.
4. Evidence-based guidelines. In workers’ compensation, payers rely on evidence-based guidelines when making treatment decisions. Currently, medical marijuana is not included in any workers’ compensation treatment guidelines, such as the Official Disability Guidelines (ODG) and the American College of Occupational & Environmental Medicine (ACOEM) Practice Guidelines—which are considered the gold standards in the treatment of occupational injuries. As a result, many payers are choosing to categorically deny coverage.
5. Effect on work performance. There are potential risks in covering medical marijuana. Although effects differ by individual and are dependent on frequency of use and dosage, studies show that marijuana can impair cognition, balance and coordination, decrease alertness and delay reaction time. These effects pose safety hazards, especially when users operate heavy machinery or drive vehicles. According to the National Institute on Drug Abuse, marijuana also has the potential to cause or exacerbate problems in daily life, and increase absences, tardiness, accidents and job turnover.
6. Drug-free workplace programs. Under federal Drug-Free Workplace Programs, employers who receive federal funds must establish a comprehensive program to address illicit drug use in the workplace and can use random drug tests to identify users. Other businesses can choose to institute a zero-tolerance drug policy. This can create a scenario like the case of Coats v. Dish Network in Colorado. Brandon Coats became a quadriplegic in a car accident and used medical marijuana to control leg spasms. In 2010, due to off-duty medical marijuana use, he failed a random drug test and was fired. On June 15, 2015, the Colorado Supreme Court upheld the right for businesses to fire employees for medical marijuana use—even if it occurred while off duty.
Issues favoring medical marijuana
Although the factors listed previously are strong indications that medical marijuana won’t become a standard of care any time soon, there are several suggestions that the climate is simultaneously ripe for change:
1. Possible alternative for pain management. According to the Institute of Medicine, chronic pain affects about 100 million U.S. adults. Pain treatment costs up to $635 billion each year in treatment and lost productivity, and the use of opioid prescription painkillers often leads to abuse, with more than 16,000 related deaths in 2010.
Studies have shown positive results for medical marijuana’s ability to relieve pain; however, the studies were small in scale. Other studies showed synergistic effects when using marijuana with opioids, which could lower opioid dosage and abuse. Many proponents believe clinical trials should be allowed to proceed, letting the evidence speak for itself.
2. New Mexico court ruling. In certain cases, court rulings may force employers and carriers to cover medical marijuana as treatment. In a New Mexico case (Miguel Maez v. Riley Industrial and Chartis), a court ruled that the workers’ compensation insurance company had to reimburse an injured worker for medical marijuana.
Miguel Maez, a 55-year old former mechanic, suffered back injuries in February and March 2011, while working for Riley Industrial Services Inc. In 2012 and 2013, the doctor authorized a license for Mr. Maez to use medical marijuana after traditional medical therapies, including spinal anti-inflammatory injections and opioids—such as Percocet, oxycodone, and hydrocodone—failed to treat the patient’s chronic back pain and herniated disk.
On January 13, 2015, the New Mexico Court of Appeals decided the state’s “compassionate use” law would allow the medical marijuana authorization to be treated as a prescription. The ruling to reimburse the injured worker arguably allowed the carrier to avoid directly paying for an illegal drug.
3. Strong support in national polls. In national polls, a growing majority of Americans—as high as 78%—believe that medical marijuana with a physician’s recommendation should be legal.
4. Proposed bills to change classification. There are several bills currently being proposed in Congress to change marijuana’s classification. The CARERS Act proposed by Sen. Rand Paul (R-Ky.), Sen. Cory Booker (D-N.J.), and Sen. Kirsten Gillibrand (D-N.Y.) would allow patients, including veterans, to access necessary care without fear of federal prosecution. The act would recognize the state’s responsibility to set medical marijuana policy and reschedule marijuana from a Schedule I to Schedule II substance, recognizing that it has “accepted medical use.” It also would permit financial services and banking for marijuana dispensaries, and expand opportunities for research.
Another bill proposes that marijuana be regulated similar to alcohol, removing it from the Controlled Substances Act’s schedules. Oversight of marijuana would then be transferred from the Drug Enforcement Administration to the Bureau of Alcohol, Tobacco, Firearms and Explosives.
5. Tax revenue. In states in which marijuana is legalized, a significant amount of tax revenue is now being collected, which could entice more states and the federal government to move toward legalization. For example in Colorado, where marijuana is legalized for medical and recreational use, tax revenues totaled $69 million in 2014.
6. Reasonable and necessary. In most states, the law says workers’ compensation must cover what’s reasonable and necessary, as well as proven to be “efficacious.” Most insurance companies currently take the position that medical marijuana has not been conclusively found to be an effective treatment. There may be cases in which use is acceptable, however. For example, an employee with work-related cancer could have a doctor authorize marijuana to stimulate appetite during chemotherapy. This claimant would have a good chance of having medical marijuana deemed a reasonable and necessary part of treatment—and covered under workers’ compensation.
Best practice framework
It’s important to become aware of the factors on both sides of the medical marijuana issue. But employers can take some actions now to deal with the issue, regardless of whether medical marijuana is legal in the states in which they have employees. All employers should:
- Review their employee handbooks and personnel policies with legal counsel and human resource professionals—and clearly communicate expectations regarding medical marijuana to their workers.
- Collaborate with insurers, third-party administrators, and pharmacy benefit managers to establish workers’ compensation policies, and equip claims handlers with standards for review, rather than leaving them to use personal judgment.
- Stay abreast of new cases, judgments and verdicts—as well as public and political trends—that could forecast a tipping point toward change and reclassification.
Kevin Glennon, RN, BSN, CWCP, is vice president of Clinical Education & Quality Assurance Programs at One Call Care Management, where he applies his clinical expertise to help organizations achieve best-possible costs and outcomes on complex injury claims.