Injured workers in states where medical marijuana is legal face obstacles when seeking reimbursement for the drug, despite legislation aimed at simplifying the process.
A court decision in Pennsylvania could soon clear up the issue for employers in that state, but rulings in other states leave a string of legal precedents for multistate companies to navigate.
Employers often remain concerned that paying for the cost of a drug that is illegal at the federal level could put them at risk for prosecution, experts say.
Medical marijuana is legal in 37 states and the District of Columbia, and several states have introduced legislation this year that would allow or expand its use, according to the National Organization for the Reform of Marijuana Laws, which advocates decriminalizing marijuana.
Legislators in Indiana, Kentucky, Nebraska, South Carolina and Tennessee have introduced, or plan to introduce, legislation to legalize medical marijuana, according to NORML.
New Jersey, Texas and West Virginia, meanwhile, want to expand and amend their existing medical marijuana programs.
However, under federal law, cannabis is illegal and classified as a Schedule 1drug, along with heroin, LSD, ecstasy and other potent drugs.
Amid legal changes, state courts have split on whether and how injured workers should have access to marijuana. Some have ruled that repayment is allowed, even ordered it in some cases, and others have said it would violate the federal Controlled Substances Act.
Employers and workers’ compensation insurers often say that regardless of their own preferences, they are excluded from paying for cannabis, says Jenifer Kaufman, an attorney in Abington, Pennsylvania. Cannabis is sometimes used as an alternative to prescription painkillers.
Employers in Pennsylvania are awaiting a decision on cannabis reimbursement from the state’s Commonwealth Court, which is expected to issue a decision soon in the Sheetz v. Workers Compensation Appeal Board (Firestone Tire & Rubber). Courts in the state have not previously taken a position on the issue.
Pennsylvania’s medical marijuana law does not require employers to cover the cost of a worker’s medical marijuana, but it is silent on reimbursement.
“They don’t define coverage,” Kaufman said. “I don’t think coverage and compensation are the same thing.”
Elsewhere, the Supreme Judicial Court of Maine in 2018 overturned lower court decisions allowing injured workers to receive compensation for medical marijuana.
The court entered that Bourgoin v. Twin Rivers Paper Co . that “an employer required to reimburse an employee for medical marijuana expenses is thereby liable to commit a federal crime.”
“I was disappointed, frankly. I thought the Appellate Division got it right,” said attorney Paul Sighinolfi of the Supreme Judicial Court of Maine. Bourgoin decision.
Mr. Sighinolfi was executive director and chairman of the Maine Workers’ Compensation Board from 2011 to 2019. He now serves as senior managing director of Burlington, Massachusetts-based Ametros Financial Corp.
Other state appellate courts — such as those in New Hampshire and New Jersey — have taken the opposite position, ruling that insurers and employers must or may reimburse.
The US Supreme Court in June 2022 declined to take up the issue after conflicting messages from state courts. It was asked to address the issue after a decision by the Minnesota Supreme Court held that employers do not have to substitute medical marijuana in comp.
The denial brought the matter back to the state courts.
Bert Randall Jr., a defense attorney with Baltimore-based Franklin & Prokopik PC, said he is “hesitant to support reimbursement … only because of the significant problems employers and their insurers face when it comes to banking issues and that address some of the safety concerns through the use of marijuana,” which is unregulated in terms of dosage.
Because of a federal ban on illegal industries using the banking system, “it really puts employers and their insurers in very difficult positions,” he said.
In some states where courts have ordered reimbursement, the payment has gone directly to the injured worker and not to a pharmacy or provider, Randall said.
Customers have had to come up with “pretty odd protocols” for reimbursement, he said.
“The mechanics of it, because of the restrictions on banking and making certain types of payments and the potential repercussions of that, creates a lot of concern,” he said.