The Pennsylvania Medical Marijuana Act was signed by Governor Wolf on April 17, 2016, leaving employers with more questions than answers about employee use of medical marijuana.
Key points of the Act note that those who are prescribed medical marijuana must have one of 17 designated “serious medical conditions” as diagnosed by a Department of Health (DOH) registered physician. First, the patient must obtain a certificate from a DOH-registered physician. They then receive an ID card from the DOH, and their name is placed in the state database. The patient is then able to get medical marijuana from a designated dispensary in their area.
There are several forms of medical marijuana for patient use. These includes pill, oil, tincture or liquid. In a topical form, the medication will be gel, cream or ointment. There may also be a formulation suitable for vaporization or nebulization, but it is important to note there is no formula which allows the patient to legally smoke marijuana.
The active principles in marijuana are called cannabinoids. Currently there is limited research as to clinical effectiveness of cannabinoids. However, they have been shown to be effective in treating central / chronic pain / painful spasms refractory to opioids, chemotherapy induced nausea and vomiting as well as the chronic pain associated with cancer, chronic spasticity and neuropathic pain. There is insufficient evidence showing effectiveness in treatment of conditions such as inflammatory bowel disease, seizure disorders, acute pain, glaucoma, Parkinson’s and Huntington’s disease, as well as some other conditions. Again, the current research is limited and ongoing study must be conducted and monitored, although this may continue to be hampered by federal government regulations and the current federal administration.
The legal implications for employers concerning medical marijuana are many, and are not limited to workers’ compensation matters. There are the additional concerns of the Americans with Disabilities Act (ADA) and exposure under Equal Employment Opportunity (EEO) laws, as well as its general legality. While many states, including Pennsylvania, have now adopted medical marijuana use, federal law describes marijuana as a Schedule 1 narcotic and has not accepted it for medical use. It is important to note, however, that the federal government will not prosecute those who use medical marijuana if deemed legal by the state.
Workers’ Compensation Application
While employers are becoming increasingly concerned over the use of medical marijuana, from the perspective of a workers’ compensation claims adjuster, it is no more of a threat than alcohol intoxication, legal prescription drug use or illegal drug use on the job. It is no more a threat than any other substance use for which an employer may not be aware of, nor be entitled to be aware of.
For example, if your employee has a medical condition for which chronic opioid pain medications are utilized, are you necessarily aware of this? Are you asking your workers if they have maladies or conditions affecting their health? This is protected health information, and if you have no policy for your employee reporting use of these substances, you cannot ask about it. So long as there is no visible impairment of your worker, and they are adequately and sufficiently performing the essential functions of their job safely and reasonably, you would not be aware of any substances, legal or illegal, your worker may be taking, unless they disclose this to you.
Until recently, it has been standard practice to perform drug screening immediately following a work-related injury. On August 10, 2016, the Occupational Safety and Health Administration (OSHA) established new rules prohibiting mandatory post-accident drug testing because of discrimination against employees on the basis of injury and illness reporting. The concern is that workers who may have used an illegal substance historically, and at some point sustained a work injury, might not report the injury for fear the post-accident drug test results could result in employment termination. This can skew safety results and lead to a less safe and less healthy work environment. If incidents are not reported, workplace safety matters cannot be properly investigated and remedied.
What is allowable, however, is post-accident drug testing under reasonable suspicion. That is, if it can be shown there is reasonable suspicion for testing, such as by the nature of the incident itself, observation of the workers’ inability to perform the essential functions of the job, or other behaviors deemed to constitute reasonable suspicion, then the testing can be requested. The caution though, in terms of acceptance or denial of the claim, lies in the nature of the incident itself. The burden of proof is on the employer to show that but for the intoxication of the worker, whether induced by legal or illegal substances, the incident would have occurred. In other words, to uphold a claim denial, the employer must show the incident occurred as a direct result of said intoxication.
Other employer concerns include: 1) employees with an established and accepted workers’ compensation injury who may be prescribed medical marijuana; and 2) whether workers’ compensation insurance covers medical marijuana, and should it?
Again, the answers are not crystal clear. Consider the tools and practices already used in the coverage of medical treatment under a workers’ compensation claim. The treatment must be reasonable, necessary, and causally related to the work injury. The practitioner prescribing the treatment or medication must be a licensed provider. And, per the Medical Marijuana Act, only DOH-approved doctors can prescribe medical marijuana, so the employee would have to be a patient of said provider.
Are insurance companies paying for medical marijuana? Nationwide, for example, does not reimburse medical marijuana treatment except in jurisdictions that mandate it by law. And so far, only five states—Connecticut, Maine, Minnesota, New Jersey and New Mexico—officially require insurers to pay workers’ compensation claims involving medical marijuana. New Mexico was first with the 2014 case Vialpando v. Ben’s Automotive Services. The state’s court of appeals upheld the validity of a workers’ compensation award directing an employer and insurer to reimburse a worker for the cost of medical marijuana used to relieve pain. The take away is that carriers do not necessarily have to reimburse for or cover medical marijuana as a treatment for a work-related injury. In the future though, as more research is conducted as to the efficacy of medical marijuana, it may become a very real treatment protocol. Considering the opioid crisis in this country, many physicians are turning to medical marijuana as an alternative to more addictive opiates in treating and managing pain.
What should an employer do?
Continue to follow best practices for employment. Review current policies and, if necessary, develop new policies to address this issue.
Create strong and concise job descriptions that include:
- Essential functions and comprehensive physical analyses of the position
- Descriptions of the physical and mental capabilities needed
- Standard of care and description of safety sensitive duties required
The policy should include an employee drug prescription disclosure for any medications that may impair safe work performance. Treat employees with a license like any other employee with prescription medication that could affect their ability to carry out the duties of their employment. While the regular principles around duty to accommodate apply, this does not mean allowing a worker to carry out those duties while impaired.
Another stronghold for employers is supervisor training and clear employer policy. As with all substance abuse concerns, reasonable suspicion protocol calls for consistency, confidentiality and documentation. Documentation is key in identifying problems, outlining action plans for solutions, and performing the appropriate follow up for disciplinary action and consistency in practice. The policy must clearly state that employees in safety sensitive positions should not be working while impaired. This should apply to all types of substance abuse, whether said substances be deemed legal or illegal. With a strong substance abuse policy, employers are able to work within the confines of law and provide practical solutions.
With regard to workers’ compensation claims, documentation remains key as the first line of defense. Adjusters and defense counsel rely upon the initial investigation and details of the incident in question. Documentation of evidence of reasonable suspicion and follow up drug testing is very important in determining compensability and should be communicated with the workers’ compensation claims handling team.
Employers should consider whether it’s appropriate to implement a medical marijuana policy. Make sure the policy is clear and consistent with what has been established by the Pennsylvania Medical Marijuana Act. Develop and document internal protocols regarding use, drug testing, etc. The policy needs to address both supervisor and employee training.
It is imperative to consult and collaborate with employment counsel to create a policy that is both practical and useful. Also, it is helpful to partner with an occupational health provider for the medical input needed to establish a thorough policy. These partners can help develop a policy that will serve both the company needs and the safety and well-being of employees – all within the confines of the law.
Sources / References
- Jim Devine, Esq., Susan Deely, Esq., Devine Law Offices (2018, February). Medical Marijuana in Pennsylvania: The Legal Landscape for Employers
- James Rochester, MD, Worknet Occupational Medicine (2008, February) Medical Marijuana
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