Medical Marijuana and PA Workers' Compensation
Pennsylvania signed the Medical Marijuana Act into law on April 17, 2016. The impact of medical marijuana on the workers’ compensation system, claimant’s and insurance companies is something that many in the industry will be closely watching in the weeks and months to come.
Definition of Medical MarijuanaUnder the Act, the term medical marijuana refers to marijuana obtained for a certified medical use by a Pennsylvania resident with a serious medical condition and is limited by the Act to the following forms: pill; oil; topical forms (gels, creams and ointments); form medically appropriate for administration by vaporization/nebulization; tincture and liquid.
Definition of Serious Medical ConditionThe Act defines a *serious medical condition* as any of the following 17 conditions: ALS; Autism; Cancer; Chron*s Disease; Damage to nervous tissue of the spinal cord; Epilepsy; Glaucoma; HIV; Huntington*s Disease; Inflammatory Bowel Disease; Intractable seizures; MS; Neuropathies; Parkinson*s disease; PTSD; Severe chronic or intractable pain of neuropathic origin or severe chronic or intractable pain in which conventional therapeutic intervention and opiate therapy is contraindicated or ineffective; Sickle cell anemia.
Impact on Worker's RightsThere are several provisions of the Act that will impact worker*s rights on employment and workers* compensation law issues. For starters, Employers are not required to permit employees to work under the influence when to do so would pose a risk of harm. They also do not have to accommodate the use of medical marijuana on the Employer*s premises. Third, they do not have to withhold discipline where an employee is under the influence in the workplace or performs negligently (conduct that falls below the standard of care normally accepted for that position) as a result of being under the influence. And lastly, the Employer does not have to take any act that would constitute a violation of federal law (marijuana is still illegal under federal law and this seems directed at Department of Transportation regulations and other federal laws impacting employment). There is however language in the Act protecting employees that are certified to use medical marijuana. Employers cannot discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee*s compensation, terms, conditions, location or privileges solely on the basis of such employee*s certified medical marijuana status.
Effect on Workers' CompensationJust how exactly employers and workers* compensation insurance companies in PA treat Claimant*s receiving medical marijuana remains to be seen. It is easy to foresee a situation where employees suspend or discharge a medical marijuana Claimant for reasons related to their usage. It is also just as likely that insurance companies will challenge the reasonableness, necessity and/or causal relationship of paying for medical marijuana despite a physician*s certification. However, the Act is silent on whether employers would have to initially pay or reinstate wage loss benefits where an Employer refuses to allow a Claimant using medical marijuana to work in any capacity. Such a situation would create a very compelling argument for a claimant to receive wage loss benefits because of the Employer*s refusal to provide work.