Is there overlap amid Pennsylvania’s 2-year-old Medical Marijuana Act and the abundant abundant earlier Pennsylvania Workers’ Advantage Act? You bet there is. Just attending at the account of condoning medical altitude for which a Pennsylvania citizen may access medical marijuana—at atomic four of the 21 altitude could be “work-related” conditions:
Additionally, an afflicted artisan may already be application medical marijuana for nonwork-related symptoms. So what does an employer charge to apperceive back ambidextrous with an afflicted artisan who is additionally application medical marijuana?
Most administration crave post-accident biologic testing as a agency of announcement abode safety. Beneath a archetypal biologic testing policy, a absolute analysis equates to a assurance that the agent was beneath the influence. Conduct generally follows. But, what if the agent is application medical marijuana?
An employee’s use of medical marijuana acceptable will not change the aftereffect of the test. If a sample contains levels of THC aloft the cutoff, the analysis will be absolute for marijuana behindhand of the acumen for use. In 2017, the U.S. Administration of Transportation issued an adapted “medical marijuana notice” authoritative bright that marijuana, in all forms, charcoal actionable beneath federal law. Accordingly, the apprehension provides that “medical analysis admiral will not verify a biologic analysis as abrogating based aloft advice that a physician recommended that the agent use ‘medical marijuana’ …” Because best MROs chase DOT testing guidelines for all biologic tests to ensure consistency, alike back a non-DOT adapted agent tells the MRO that he/she is certified to use alleviative marijuana, the MRO will nonetheless accredit the analysis as positive.
Accordingly, how an employer treats a absolute aftereffect for an afflicted artisan who is application alleviative marijuana will depend, in ample part, on three factors:
Generally, courts acquire sided with the employer apropos conduct for post-accident biologic testing, alike back the agent is a certified medical marijuana user. See Cotto v. Ardagh Glass Packing, (Dist. N.J., 2018); Carlson v. Charter Communications, (Dist. Mont. 2017) and Lambdin v. Marriott Resorts Hospitality (Dist. Hawaii 2017). However, these are not Pennsylvania courts, the accent of anniversary state’s medical marijuana act differs and there is annihilation acute a Pennsylvania cloister to chase these rulings. Accordingly, administration would be astute to argue admonition afore adorning a medical marijuana user for a absolute biologic test.
Under accompaniment law, acquittal of work-related medical costs is to be fabricated aural 30 canicule of the cancellation of bills and annal from the bloom affliction provider. The barring is area the employer or its insurer altercation the acumen and call of the analysis and chase action for appointment abhorrent accuse to a appliance analysis organization. Pennsylvania law additionally establishes assertive fee caps for medical analysis (see, e.g. Section 306 (f.1)(3)(vi)), and banned agreement of decree drugs and able biologic casework to 110 percent of the boilerplate broad amount of the product.
However, pursuant to Section 2102 of the Pennsylvania MMA, insurers and bloom affairs are not appropriate to board advantage for medical marijuana. Section 2102 is constant with a civic accord that alleviative cannabis charge not be covered beneath bloom insurance. Section 2102 is broadly accounting and supports an altercation that neither a workers’ advantage insurer nor a self-insured employer should be accountable to anon balance a bloom affliction provider or berth for “coverage” apropos to medical marijuana.
But what about agreement to the afflicted artisan for abroad expenses?
Notably, the Workers’ Advantage Act does admittance agreement of assertive abroad costs that are contrarily reimbursable beneath the act. However, an agent gluttonous agreement of medical marijuana costs will acceptable face several appalling arguments, including the following:
Accordingly, absent aldermanic alteration of the Pennsylvania Workers’ Compensation Act or federal law, it is difficult to account an ambiance in which insurers and self-insured administration will acceptable the accepted agreement of costs accompanying to medical marijuana. But, acquire a carrier wishes to balance medical marijuana in a accustomed case for cardinal reasons, such as weaning an opioid absorbed appellant from added alarming substances, in adjustment to abstain the accident and acknowledgment of an overdose. Is this permissible beneath the MMA and Workers’ Advantage Act? Does such agreement authorize a antecedent to pay for medical marijuana in added condoning cases?
There are several agency that medical marijuana could advice with the civic opioid crisis, including abridgement in deaths, abatement from abandonment affection and blockage of opioid addiction. Studies arise by the Philadelphia Veterans Affairs Medical Center (October 2014) and Journal of Neuroscience, acquire accustomed that states with medical marijuana laws acquire a 25 percent lower beggarly anniversary opioid balance bloodshed rate, as compared to states after medical cannabis laws. Additionally, 60 percent of opioid overdoses action amid patients with accepted prescriptions from a distinct provider—a accomplice which could account from a clinically safer another such as medical marijuana. The studies additionally advance that a basic of marijuana, declared cannabidiol, can abate cravings and anticipate relapses amid convalescent opioid absorbed individuals.
Legally, neither the MMA nor the Workers’ Advantage Act absolutely prohibit an insurer or self-insured employer from voluntarily reimbursing costs associated with medical marijuana. It would be prudent, of course, to crave affidavit that the advocacy for medical marijuana relates to a covered action and that its use is reasonable and all-important to abate pain, access concrete action or to abatement or annihilate the use of added added alarming medications. As far as ambience a antecedent for approaching payments, there is a abiding case law aphorism in workers’ advantage practice, that the autonomous acquittal of medical costs is not an acceptance of liability, see Securities Security Casework USA v. Workers’ Advantage Appeal Board, 16 A.3d 1221 (Pa. Commonwealth 2011).
Accordingly, there would arise to be little accident of bounden precedent, should a carrier adjudge to acquire assertive medical marijuana costs as reimbursable, while abstinent others.
What appulse ability medical marijuana use acquire on adapted assignment programs for afflicted workers?
The Pennsylvania Medical Marijuana Act does not crave an employer to board the use of medical marijuana while the agent is on the employer’s premises. Likewise, administration may prohibit certified users from assuming assertive safety-sensitive jobs while “under the influence” of medical marijuana. Finally, the MMA does not crave administration to “commit an act that would put the employer or any being acting on its account in abuse of federal law.” In the simplest of terms, this agency that administration may:
However, administration charge additionally be alert of the MMA’s anti-discrimination provision—“No employer may discharge, threaten, debris to appoint or contrarily discriminate or retaliate adjoin any agent apropos an employee’s compensation, terms, conditions, area or privileges alone on the base of such employee’s cachet as an alone who is certified to use medical marijuana” Area an employer offers adapted duty, alike if on a bound basis, as a agency of authoritative amount acknowledgment in workers’ compensation, the employer may run afield of Section 2103(b)(1) if they absolute debris to action adapted assignment to an afflicted artisan alleviative with medical marijuana. At the actual least, an employer should appoint in altercation with the agent to actuate if his/her use of medical marijuana, alfresco of work, can be accommodated in the adapted assignment position. For the agent who still requires a CDL to accomplish the adapted assignment job, adaptation acceptable will not be necessary. For the agent who will be stickering boxes in a aircraft department, adaptation ability be prudent.
Finally, whether an afflicted artisan should be denied workers’ advantage allowance accident allowances because his/her medical marijuana use prevents accord in a adapted assignment program, will depend on a accurate assay of the accomplishments facts. Generally, already an agent establishes that a work-related abrasion prevents a acknowledgment to her time-of-injury job, a accident of earning accommodation has been established. The agent is advantaged to benefits, unless the employer can authenticate the availability of assignment aural her restrictions, which assignment would acquire been available, but for the employee’s abridgement of acceptable faith, see Vista International Hotel v. Workers’ Advantage Appeal Board (Daniels), 742 A.2d 649 (Pa Supreme Cloister 2000). The employer bears the accountability of proving the declared disqualifying agent conduct. It charcoal to be apparent whether use of medical marijuana, either afore the abrasion or because of the injury, area the agent had/has ability that such use may disqualify him/her from application would aggregate “lack of acceptable faith” beneath the law.
Unfortunately, for administration abyssal the coaction amid these two acts, there may be added questions than answers for the accountable future. For now, administration should appraise anniversary amount on its facts and should assignment collectively with their allowance carrier/adjustor and admonition to cross the process.
Denise Elliott practices in McNees Wallace & Nurick’s activity and application convenance accumulation and focuses on arresting self-insured administration in workers advantage affairs and accouterment representation and admonition to audience in application bigotry litigation, ADA/FMLA compliance, biologic testing, assurance and bloom issues.
Paul Clouser practices in the firn’s labor and application convenance group. He handles employer problems with a focus on workers’ compensation. He has over 25 years of action acquaintance and represents abundant self-insured administration and third affair administrators in Workers’ Advantage affairs throughout Central Pennsylvania
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