Medical marijuana is still a controversial subject in the field of employment, even as it becomes less controversial generally. Thirty-three states now provide for legal medical marijuana. Many of those states legalized medical marijuana after the success of ballot measures in statewide elections. At the same time, the drug remains a controlled substance at the federal level and the Controlled Substances Act states that marijuana has no commonly accepted medical usage.
In those states that have legalized medical marijuana, disputes have arisen regarding the treatment of the drug in an employment context. Some states have rigorously protected an employee’s right to use medical marijuana provided the employee’s use does not happen during working hours and does not impact the employee’s ability to meet his job requirements. Other states have given employers broad discretion to terminate employees for the use of medical marijuana.
Now, the controversy over employee use of medical marijuana has reached workers compensation programs. This month, a New Jersey appeals court ruled that workers compensation must cover the cost of an employee’s medical marijuana prescription.
The case stems from an on the job accident that occurred in 2001. The employer at issue had denied the employee’s workers compensation claim for fifteen years after a truck delivering concrete accidentally dumped its load on the employee. The accident led to nerve damage and spinal surgery. Sadly, as happens all too often, the pain from the injury and resultant surgeries also led to opioid addiction.
A doctor in New Jersey prescribed medical marijuana to the employee to wean him off opioids, while still managing the employee’s on going pain and suffering. According to the court documents, the employee successfully kicked his opioid habit with the use of the medical marijuana, but the employee was spending on average over six hundred dollars a month on his new prescription. When the workers compensation judge ordered that the cost of that prescription be included in the award, the employer appealed.
On appeal, the employer argued that because marijuana was still illegal under federal law, the workers compensation ruling effectively required the employer to aid and abet a criminal act. The appeals court was not persuaded. Reimbursing the employee for the cost of his prescription did not qualify as aiding and abetting to the appeals court since the employer did not have to purchase, distribute, or consume the substance.
The case is expected to set a significant precedent for other states that have legalized medical marijuana. While other courts have included marijuana amongst reimbursable expenses in workers compensation claims, this is the first time a court had specifically addressed the federal issue under the Controlled Substances Act. Its worth noting that similar cases were already pending in Pennsylvania.