Medical Marijuana: 2017 Update

Medical Marijuana: 2017 Update Issue Evolution of Medical Marijuana Regulatory Activity State Federal Marijuana: A Medicine for Injured Workers? Challenges Workplace Insurance Judicial Decisions NCCI Treatment Looking Ahead

Should Marijuana Be a Medical Option in Workers Compensation? The medical marijuana landscape has changed dramatically over the past 45 years: 1970–US Congress places marijuana on Schedule I of the Controlled Substances Act 2016–28 US states and the District of Columbia have passed laws legalizing medical marijuana for various conditions Source: White House: Office of National Drug Control Policy

Should Marijuana Be a Medical Option in Workers Compensation? Potential benefits of the legalization of medical marijuana: Argument that medical marijuana is a beneficial and therapeutic treatment for various medical conditions (e.g., symptoms of cancer, AIDS, multiple sclerosis, pain, migraines, glaucoma, epilepsy, and other seizure disorders) Potential risks of the legalization of medical marijuana: Argument that marijuana has a high potential for abuse, is not FDA approved, and the impact to an individual’s overall health is not fully understood (e.g., fertility issues, breathing problems, detrimental to the immune system and brain)

Evolution of Medical Marijuana 2900 BC First introduced in China 1611 Jamestown settlers brought it to North America 1850 Marijuana added to US Pharmacopeia 1911 MA first state to ban it 1937 Marijuana Tax Act–Federal law passed banning the use of medical marijuana outside of prescription situations 1970 Controlled Substances Act: Schedule I drug 1996 CA first state to legalize medical marijuana 2016 Marijuana is legal in 28 states (plus the District of Columbia) for medicinal use

Legalization of Marijuana— State Activity 28 states and the District of Columbia have legalized medical marijuana use (Arkansas, Florida, and North Dakota passed law in November 2016) 8 states (Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, and Washington) and the District of Columbia have legalized the recreational use of marijuana (California, Maine, Massachusetts, and Nevada passed law in November 2016) In 2016—Legislation or ballot measures to legalize marijuana in at least 14 states

2016 Medical Marijuana Laws State Information Source: medicalmarijuana.procon.org

Legalization of Marijuana— Workplace Challenges Currently, no state allows employees to use marijuana in the workplace or requires employers to allow marijuana use on the job Employees who can legally use medical marijuana while off duty may still face consequences for arriving to work with detectible amounts of marijuana in their system There is a question of whether lingering side effects may impact performance of regular work duties

Legalization of Marijuana— Insurance Challenges Insurers are receiving requests to pay for medical marijuana Reimbursement issues Centers for Medicare and Medicaid Services Absence of National Drug Code Given federal issues, state courts are faced with the challenge of whether to approve medical marijuana treatment for work- related injuries

Legalization of Marijuana— Federal Activity Federal Level—Marijuana is an illegal Schedule I drug under the Controlled Substances Act August 2016—The US Drug Enforcement Administration announced that it will not reclassify marijuana Unclear what will happen under new Administration

Marijuana: A Medicine for Injured Workers? Research Continues on Marijuana’s Medical Use: To be considered a legitimate medicine, a substance must have well-defined and measurable ingredients that are consistent from one unit to the next. The marijuana plant contains more than 500 chemical compounds, as well as THC, which vary from plant to plant. In addition, the average potency of marijuana has more than doubled. Sources: National Institute on Drug Abuse (NIDA), National Institutes of Health, US Department of Health and Human Services, and US Government Accountability Office

Marijuana: A Medicine for Injured Workers? Scientists have confirmed that the cannabis plant contains active ingredients with therapeutic potential for relieving pain, controlling nausea, stimulating appetite, and decreasing ocular pressure. Marijuana could be used for injured worker pain relief but is not typically recommended as the first choice of drugs to address pain; however, some argue it’s cheaper and less addictive than drugs like OxyContin. Side effects and behavioral effects may make it counterproductive for the treatment of pain for injured workers. “Penn Study shows 25 percent fewer opioid-related deaths in states allowing medical marijuana.” See Penn Medicine, news release, August 26, 2014.  

Legalization of Marijuana— Judicial Activity Colorado Supreme Court: Coats v. Dish Network—Employers can lawfully terminate workers for using marijuana outside of work hours, even though the drug is legal in the state. A “lawful activity”, under Colorado’s Lawful Activities Statute, must be lawful under both state and federal law. New Mexico Court of Appeals: Vialpando v. Ben’s Automotive Services and Redwood Fire & Casualty—An insurer must reimburse a qualified* workers compensation claimant for the cost of medical marijuana to treat low back pain (appealed to NM Supreme Court: Certiorari denied). Maez v. Riley Industrial; Lewis v. American General Media—An employer is required to reimburse a qualified* claimant for medical marijuana if the drug is reasonable and necessary medical care for treatment of a work injury. * To be qualified, claimant must qualify for the State of New Mexico Department of Health Medical Cannabis Program authorized by the Lynn and Erin Compassionate Use Act (the “CUA”). Must have “debilitating condition” as defined under the CUA.

Legalization of Marijuana— Judicial Activity US District Court New Mexico: Garcia v. Tractor Supply Company—Court upheld employee’s termination even though employee qualified for medical marijuana under state Act, which offered limited immunity from criminal prosecution, but imposed no duty on employers to accommodate medical marijuana use. US District Court for Western District of Washington: Swaw v. Safeway, Inc.—Dismissed employee’s discrimination and retaliation claims after he was terminated for testing positive for marijuana following workplace injury and violating a drug-free workplace policy. United States Supreme Court: States of Nebraska and Oklahoma v. State of Colorado—Nebraska and Oklahoma challenged that Colorado law violates the Supremacy Clause of the US Constitution. The Court declined to hear the case.

Legalization of Marijuana— Judicial Activity Connecticut Workers Compensation Commission: Petrini v. Marcus Dairy, Inc. and Gallagher Bassett Service—Upheld a trial commissioner’s decision that the claimant’s use of medical marijuana for pain management of his debilitating condition, as statutorily defined constitutes reasonable and necessary medical treatment. Maine Workers Compensation Board: Noll v. Lepage Bakeries, Inc. and Cannon Cochran Management Services, Inc.—Affirmed Administrative Law Judge’s decision ordering a self-insured employer to reimburse an injured worker for costs associated with the “reasonable and proper” medical use of marijuana to treat his back injury.

Legalization of Marijuana— Regulatory and Legislative Activity New Mexico: Adopted a fee schedule to provide for reimbursement of medical marijuana to injured workers. Effective January 1, 2016. New Mexico: Introduced legislation requiring employers/carriers to pay for medical marijuana for injured workers (SB 371). Introduced February 9, 2017 North Dakota: Considering legislation prohibiting payment of workers compensation benefits for medical marijuana (HB 1156). Passed House January 23, 2017. Passed Senate as amended and sent back to House March 10, 2017.

Possible Applicable NCCI Classification Codes Growing and Cultivating Code 0079—Farm—Berry or Vineyard & Drivers Code 0035—Farm—Florist & Drivers Testing Code 4511—Analytical Laboratories or Assaying—Including Laboratory, Outside Employees, Collectors of Samples, & Drivers When performed by an independent lab, it is properly classified to Code 4511 Testing performed by the grower is properly classified to Code 0035 or Code 0079 (appropriate growing classification) Product Manufacturing Code 2003—Bakery—Salespersons & Drivers Code 4611—Drug, Medicine or Pharmaceutical Preparation—Compounding or Blending—No Manufacturing of Ingredients Sales Code 8045/8047—Store—Drug Retail/Wholesale (Medicinal Marijuana Dispensaries) Code 8017—Store—Retail NOC (Recreational Use Marijuana)

Summary States are increasingly legalizing marijuana in some form for medical use Courts are increasingly dealing with contested cases of medical marijuana in the work environment Marijuana is still illegal under federal law and remains a Schedule I drug