Governor Wolf will shortly sign into law a bill legalizing medical marijuana in Pennsylvania. Its impact on workers’ compensation appears to be minimal, if at all. Here are the highlights:
Section 2102 of the bill states “nothing in this act shall be construed to require an insurer or a health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana.” The bill does not define “insurer.” We would argue the intent of the plain language of the law is that private insurance companies, including workers’ compensation carriers or other insurance providers, do not have to pay for marijuana.
The law is highly complicated as to licensing requirements, certification of physicians to be eligible to prescribe marijuana, methods of delivery of drug (cannot be smoked in leaf form, only liquid oil form, pills and tinctures allowed) and who is eligible to receive it. It is estimated that it will take two years before the regulations are published and the system is in place. There are seventeen conditions which are eligible, the following are the ones most likely to be encountered in workers’ compensation:
(1) Post-traumatic stress disorder;
(2) Neuropathic pain; and
(3) Severe chronic pain which cannot be controlled by conventional therapies or for which opiate therapy is ineffective or contraindicated.
We see two possible worker’s compensation litigation issues:
(1) Whether a UR of marijuana treatment would be viable on the theory that the treatment is not reasonable or necessary due to the continuing language in Federal law that marijuana is a Schedule 1 drug and cannot be prescribed for any purpose.
(2) If a person could request the WC carrier reimburse him for out of pocket payments made to purchase the medical marijuana.
Effect on employer drug free workplace policies: The law states the following as to employer and employee rights regarding medical marijuana use: If a person is legally entitled to use medical marijuana under the law, that status cannot be used to discipline the employee, unless that person is under the influence at work and it affects the employee’s ability to do the job, or its use would violate Federal law. (Truck drivers, high security jobs etc.)
(1) No employer may 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 status as an individual who is certified to use medical marijuana.
(2) Nothing in this act shall require an employer to make any accommodation of the use of medical marijuana on the property or premises of any place of employment. This act shall in no way limit an employer's ability to discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee's conduct falls below the standard of care normally accepted for that position.
(3) Nothing in this act shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of federal law.