Medical marijuana is a hot topic in NJ workers compensation law right now. A recent case in the New Jersey Appellate Division mandated that employers should reimburse employees for medical cannabis use related to a workplace accident.
In the case, Hagar vs. M&K Construction, M&K argued that the Federal Controlled Substances Act makes it a crime to manufacture, possess, or distribute marijuana, and that federal law should preempt the New Jersey Compassionate Use Medical Marijuana Act. They further argued that forcing them to pay for medical marijuana would force them to aid and abet in Hagar’s possession of an illegal substance, and that they should be treated like private health insurers who are not required to reimburse medical marijuana costs.
The court ruled in favor of Hagar. In his opinion, Judge Currier wrote:
“We conclude the order does not require M&K to possess, manufacture, or distribute marijuana, but only to reimburse petitioner for his purchase of medical marijuana…we discern no conflict between the CSA and MMA. Furthermore, M&K’s compliance with the order does not establish the specific intent of an aiding and abetting offense under federal law. We also conclude M&K is not a private health insurer. Therefore, it is not excluded under the MMA from reimbursing the costs of medical marijuana.”
“Here, where petitioner has demonstrated the severity and chronic nature of his pain, his attempts to unsuccessfully alleviate the pain with multiple surgeries and medical modalities, and the validated efficacy of the prescribed medical marijuana, we find the use of medical marijuana is reasonable and necessary.”
This decision tells us most employers will have to reimburse employees for medical marijuana use. Further, there are now two bills before the state legislature that address the medical marijuana.
The first is A377, which protects insurance companies and their employees from retaliation by state or local government if they engage with marijuana-related businesses. This reduces employer liability and may make paying medical marijuana claims more palatable to them. The tension between state law and federal law nevertheless remain of concern to employers.
The second is A1708, which requires worker’s compensation and personal injury protection to cover costs associated with medical marijuana in circumstances where the patient has unsuccessfully tried at least one other treatment.
Neither bill forces Medicare or private insurers to cover medical marijuana.
Employers might be heartened to learn that workers who have access to medical marijuana are less likely to file workers compensation claims. This finding would of course relate to medical marijuana the worker had access to prior to any claim, but might inspire employers to begin shopping for health insurance plans willing to cover the cost of medical marijuana.
Research also shows employees with access to medical marijuana file claims that last for shorter lengths of time, as well. It makes some sense: imagine an employee who is able to manage a repetitive stress injury through the use of medical marijuana. An employee who no longer has to contend with the pain of an RSI might be able to work as normal, even if they are technically injured.
Don’t be afraid to discuss medical marijuana with your workers compensation doctor. If after trying other alternatives you and your doctor believe it’s right for you, there is a strong case for getting workers compensation insurance to cover it.