Issue link: http://palletcentral.uberflip.com/i/1390499
PalletCentral • July-August 2021 21 The injured worker who opts to use legal medical cannabis may want to be reimbursed for the cost of the medication, just as they would be for prescribed opioids or other legal drugs used for workers' compensation treatment. South Carolina (80% each). A sizable percentage of workers' compensation claims resulted in "chronic" dispensing of opioids (at least a 60-day supply). How does this relate to medical cannabis? An increasing number of states – a dozen by last count – have acknowledged that legal medical marijuana can be an effective alternative to opioids for relief of chronic pain, without having any overdose potential. Medical cannabis is also increasingly being used as an alternative treatment for other conditions such as insomnia, PTSD and depression, which may be treated otherwise with addictive benzodiazepines or other medications that can cause on-the-job impairment and increase risk of accidents or suicide. But, if not properly managed, both can cause safety issues in the workplace if an employee must use the medication during the work day – particularly if in a safety-sensitive position. While cannabis remains a Schedule I drug federally – classified along with heroin and cocaine as drugs with no medically recognized use – 36 states plus Washington, D.C. and all of the U.S. territories have now legalized medical marijuana in some form. The prospects are likely that it will be legalized at the federal level during the Biden administration, in which case all of the existing case law brought under the federal Americans with Disabilities Act (ADA) will no longer be valid, because the finding that medical cannabis use does not need to be accommodated was based solely on its federal illegality. Many states have already included employment protections to their medical cannabis laws, or are amending older ones to add such protections. State courts are cobbling together protections for disabled cannabis users by relying on the state cannabis laws read in tandem with state versions of the ADA. This accommodation is increasingly spilling over into recognition that medical cannabis may be recommended for workers' compensation injury treatment, and that long-term use may be required for treatment of chronic, intractable pain. In fact, a Veterans Affairs medical center survey found that 41 percent of patients who admitted to both cannabis and opioid use reported a decrease or cessation of opioid use due to marijuana use as an alternative. The most common reported reasons, according to the VA, were "better pain management" (36%), fewer side effects (32%) and withdrawal symptoms (26%). Similar benefits were found in an Israeli study, which found that medical cannabis mitigated symptoms and reduced the need for prescription medications among elderly nursing home patients – patients experienced reduced pain, increased appetite, better mood, improved sleep and dramatic improvements in symptoms of spasticity. Patient were most likely to eliminate their use of opioids, anxiolytics, and anti-depressants after initiating cannabis therapy. If a worker is injured, effective dialogue should begin, and if a worker will need to continue using any potentially impairing medication – whether cannabis or an opioid – they should disclose this before returning to work so that fitness for duty can be established, and an alternative non-safety- sensitive position can be provided, where feasible, while the medication must be utilized during working hours. The injured worker who opts to use legal medical cannabis may want to be reimbursed for the cost of the medication, just as they would be for prescribed opioids or other legal drugs used for workers' compensation treatment. This is an evolving area of law, with new cases being decided regularly, and many workers' compensation cases do not get reported until they reach a precedential appellate level. At present, only four states have held that employers/ workers' compensation carriers do not have to reimburse workers for medical cannabis: Florida, Massachusetts, Michigan, and North Dakota. The states that have held that workers must be reimbursed for treatment with medical cannabis are: Arizona, Connecticut, Hawaii, Maine, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Rhode Island and Vermont. Employers in Maine, New Hampshire and New Jersey argued in court that reimbursing workers would make them "drug dealers" essentially, but the courts all found there was not a tension with the federal Controlled Substances Act, because the employer was not being required to possess, manufacture, or distribute the drug but only to reimburse its employee for the purchase of medical marijuana; therefore, the employer faced no threat of prosecution. These decisions are likely to change case law in Pennsylvania as well. Liberty Mutual Insurance recommends a forward- thinking claims framework so that businesses can prepare for emerging treatment of workplace