Workers’ compensation coverage for medical cannabis

A new waive of state level legislation has decriminalized the use of cannabis, often for limited medical purposes. The argument for this legislation has often been that criminalization of the drug has thwarted efforts to assess its viability as a treatment for various medical conditions, including chronic pain. While there is presently no federal funding available for prosecution of medical cannabis related offenses,[1] federal statutes continue to deem the possession and sale of cannabis criminal. This divide has sometimes left employers caught between their obligations to employees using the drug, and their obligations under employment related statutory schemes.[2]

Employers obligated to provide medical treatment to injured workers may be required to reckon with this conflict. Workers’ compensation statutes generally require employers to finance medical treatment that is reasonable and necessary to alleviate the effects of injuries sustained by their employees on the job. In states that have enacted medical cannabis statutes, injured workers may be prescribed cannabis to treat chronic pain resulting from a work-related injury. The employer will be left to decide both: whether it is required to finance this treatment under the applicable workers’ compensation statute; and whether by doing so the employer will violate a federal criminal statute. This analysis has at least four salient dimensions, each with an unclear outcome.

Federal Preemption

While the statute is not presently being enforced, federal courts have made clear that it remains a federal crime to possess or distribute cannabis irrespective of any state statute allowing this conduct.[3] This criminal culpability may also be assignable to anyone who aids or abets in the distribution of cannabis.[4] Meanwhile, state workers’ compensation statutes generally have an express purpose of delivering medical treatment to injured workers.[5] As such, an employer that pays for medical cannabis under a workers’ compensation statute may be aiding and abetting in the distribution of cannabis. This issue has reached the Supreme Court of Maine.[6] It was decided that while the State of Maine has authority to choose not to criminally sanction the distribution of cannabis, it does not have authority to order an employer to aid and abet in the distribution of cannabis in violation of federal law. In Minnesota, similar issues have reached both the Supreme Court and the Workers’ Compensation Court of Appeals, but have not yet been decided.[7]

State Law Compliance

State medical cannabis statutes will often set forth selection criteria and procedural requirements that must be met in order to legally use cannabis. In Minnesota, the use or distribution of cannabis generally remains a criminal act.[8] Selection criteria include an exhaustive list of medical conditions for which a patient may be prescribed cannabis, one of which is “intractable pain.”[9] A qualifying patient that desires to be prescribed cannabis may then follow the procedural requirements to be placed on the medical cannabis registry. If an injured worker does not meet the selection criteria or follow procedural requirements, workers’ compensation coverage likely would not be available for the medical cannabis.

General Medical Efficacy

State workers’ compensation statutes are likely to require that an employer provide only medical treatment that is reasonable and necessary to an in injured worker. A component of this analysis is often whether there is agreement among the medical community that a treatment option is likely to alleviate or reduce the symptoms associated with a particular medical condition.[10] In part due to the history of criminalization, there is limited scientific evidence for or against cannabis as a treatment for chronic pain.[11] For that reason, it remains to be seen whether physicians and courts will accept the proposition that cannabis is reasonable and necessary to manage chronic pain, or other medical conditions.

Specific Medical Efficacy

Setting aside the issue of whether cannabis may generally be helpful in chronic pain management, employers will also need to determine whether cannabis is a reasonable and necessary treatment option for the particular injured worker requesting it. This question will be familiar to employers providing workers compensation benefits, as similar questions will likely have been raised with respect to the use of opioid medications, injections, and other chronic pain management treatment regimens. Are the pain symptoms treatable with the use of this medication? Are there contraindications to its use? Is there evidence that past use of the medication has resulted in improvement of symptoms?

In light of the above-described implications, an employer would be well advised to consult an attorney prior to financing medical cannabis to treat chronic pain for an injured worker. In the coming months and years, these issues will likely be clarified in the state and federal court system. For today, it remains unclear whether workers’ compensation statutes require employers to finance medical cannabis.

[1] See Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 538, 128 Stat. 2130, 2217 (2014).

[2] See generally, e.g. Carlson v. Charter Comms., LLC, No. 17-35917 (9th Cir. Nov. 19, 2018) (regarding an employer’s obligations under the Federal Drug-Free Workplace Act in the context of medical cannabis use by an employee).

[3] United States v. McIntosh, 833 F.3d 1163, FN 5 (9th Cir. 2016) (“The CSA prohibits the manufacture, distribution, and possession of marijuana. Anyone in any state who possesses, distributes, or manufactures marijuana for medical or recreational purposes (or attempts or conspires to do so) is committing a federal crime.”).

[4] 18 U.S.C.S. § 2(a) (Criminal culpability exists for anyone who “commits an offense against the United States or aides, abets, counsels, commands, induces or procures its commission.”).

[5] See, e.g. Minn. Stat. § 176.001 (“It is the intent of the legislature … to assure the quick and efficient delivery of indemnity and medical benefits to injured workers…”).

[6] Bourgoin v. Twin Rivers Paper Co., Inc., 187 A.3d 10 (ME 2018).

[7] In a request for certification to the Supreme Court, it is noted that “the issue of reimbursement for medical cannabis has been raised in approximately 13 workers compensation cases and five of those cases raised the issue of federal preemption.” Musta v. Robert D. McNamara, Employee’s Informal Memorandum Regarding Certified Question, No. A19-1365 (Minn. Sep. 27, 2019).

[8] See Minn. Stat. § 152.021-025; 152.02, Subd. 2 (h).

[9] Minn. Stat. § 152.125.

[10] See Minn. R. 5221.6040, Subp. 10 (“The treatment must be reasonable and necessary for the diagnosis or cure and significant relief of a condition consistent with the current accepted standards of practice within the scope of the provider's license or certification.”).

[11] Minn. Dep’t of Health: Panel Recommendations on Adding Intractable Pain as a Qualifying Condition for the Minnesota Medical Cannabis Program (Nov. 2015).