Medical Marijuana Use In The Workplace

According to the website ProCon.com, as of November 2017, 29 states had adopted laws legalizing the medical use of marijuana. The specifics of these laws vary greatly. For example, some states limit the potency of marijuana that may be legally dispensed while others specify the medical conditions for which it may be prescribed.

ARIZONA’S LAW

ARIZONA ENACTED THE ARIZONA MEDICAL MARIJUANA ACT (AMMA) IN 2010. AMMA PERMITS LICENSED MEDICAL PROVIDERS TO RECOMMEND MEDICAL MARIJUANA TO RESIDENTS SUFFERING FROM ONE OR MORE OF THE FOLLOWING “QUALIFIED CONDITIONS”:

• Cancer
• Glaucoma
• Human Immunodeficiency Virus (HIV) or Acquired Immune Deficiency Syndrome (AIDS)
• Hepatitis C
• Amyotrophic Lateral Sclerosis (ALS) (a/k/a “Lou Gehrig’s Disease”)
• Crohn’s disease
• Agitation associated with Alzheimer’s disease

ANY OTHER CHRONIC OR DEBILITATING CONDITION (OR A SIDE EFFECT OF ITS TREATMENT; FOR EXAMPLE, CHEMOTHERAPY) THAT CAUSES ANY OF THE FOLLOWING:

• Cachexia or wasting syndrome;
• Severe and chronic pain
• Severe nausea;
• Seizures, including those characteristics of epilepsy;
• Severe or persistent muscle spasms, including those characteristics of multiple sclerosis
• Post-traumatic stress disorder (PTSD)

With a practitioner’s recommendation, a “qualifying patient” (“QP”) can obtain a medical marijuana card. That card permits him or her to buy (from a state-licensed dispensary) marijuana at a rate of up to 2.5 ounces every 2 weeks and possess up to 2.5 ounces at any time. Subject to some conditions, a patient may also grow up to 12 marijuana plants. As of April 2017, the Arizona Department of Health Services reported that there were just under 126,000 QPs in the state.

FEDERAL LAW

Regardless of how a state handles the issue, however, it is clear that marijuana remains completely illegal under federal law – there is no exception for prescribed medical use. In January 2018 Attorney General Jeff Sessions announced that the Department of Justice was rescinding two Obama-era memos describing a “hands off” policy regarding prosecutions in those states that have legalized either medical or recreational pot use. How aggressively the DOJ pursues dispensaries, prescribers or “QPs” remains to be seen, but the message from Washington was otherwise clear: federal law trumps state law.

RELEVANCE TO PARTICIPANTS IN THE WORKERS COMPENSATION SYSTEM

Medical marijuana use by workers and compensation claimants raises several intriguing questions of both Arizona and federal law.  

MUST A WORKERS COMPENSATION INSURER PAY CLAIMS FOR REIMBURSEMENT OF MEDICAL MARIJUANA COSTS?

This is a relevant concern if the QP’s “qualifying condition” is work-related; for example, a health care worker accidentally infected with hepatitis C.

In Arizona, this question is squarely addressed by a 2015 amendment to AMMA providing that AMMA may not be interpreted so as to require an Arizona workers compensation insurer to pay such reimbursement.

MAY A WORKERS COMPENSATION INSURER PAY MEDICAL MARIJUANA CLAIMS?

The answer here is less clear. Remember that marijuana remains illegal under federal law. As such, insurers that wish to reimburse QPs must decide whether to risk prosecution under federal law.

In addition, dispensaries in many states have reportedly had difficulty establishing accounts with legitimate banks. Might an insurer’s bank decline to process a workers compensation payment if it determines that the payment relates to a marijuana purchase? Could the federal government seize the accounts of companies that pay medical marijuana claims? State and federal medical record confidentiality laws suggest the bank could not legitimately obtain this information, but breaches of confidentiality do occur.

MAY A WORKER WHO IS A “QUALIFIED PERSON” USE MARIJUANA IN THE WORKPLACE?

Arizona law is also clear on this point. Nothing in AMMA prevents an employer from enforcing a drug-free workplace policy as against a QP unless it can be shown that the individual’s blood concentration of marijuana’s active chemical is below that which causes impairment.