Just how legalized weed in California will impact workers’ compensation is still uncertain, but what is certain is that the insurance industry can soon expect to be grappling with issues around paying for marijuana for injured workers.
The California Workers’ Compensation Institute issued a white paper this month that examines the implications of the passage of Proposition 64 by voters.
The paper, “Working Through the Haze: Implications of Legalized Marijuana for California Workers’ Compensation System,” examines the potential impact of the legalized recreational use of marijuana in California on employers, workers’ comp insurers and the workforce.
“With recreational marijuana now legal in California, employers and insurers are well-advised to monitor this developing area of the law and its practical impact on claims processing requirements,” the paper states.
Because the U.S. Drug Enforcement Agency still classifies marijuana as a Schedule I drug, its use is prohibited by federal law, and under current California law insurers cannot be required to pay for it even if it has been recommended for medical purposes, the paper notes.
But that doesn’t mean there won’t be pressure on insurers to pay for pot, according to the author of the paper, CWCI General Counsel Ellen Sims Langille.
The legalization of marijuana may have removed the stigma from it being used only for treating serious diseases, potentially opening the floodgates for injured workers who may now see it as an option, she said.
“I think there’s going to be a greater pressure on workers’ comp doctors to recommend marijuana as a treatment,” Langille said.
It’s that pressure that may lead to more new laws, forcing the issue on the insurance industry, she added.
“Somebody somewhere in California is shortly going to start saying ‘Yes this is treatment for an industrial injury, this does cure or reduce the effects of an industrial injury,'” Langille said, adding that the conflict between federal and state law and the demand for pot can “combine into pressure to change the law.”
The CWCI paper examines the intersection of workers’ comp with medical and recreational marijuana laws in California, in other states, and at the federal level.
Among the issues discussed in the paper are a developing trend toward compelled compensation in various jurisdictions.
The paper also discusses the compensability of work-related injuries suffered by medicinal and recreational marijuana users, the enforcement of drug-free workplace policies and the potential for retaliation and discrimination claims.
The medical efficacy of marijuana and its use as an alternative to more opioids, and a lack of uniform dosage levels and delivery methods, are other questions the paper examines.
The paper also advises the insurance industry to start thinking ahead.
“Claims administrators should work to establish standards of review for requested marijuana treatment and payment,” the paper states. “Any policies that are developed should also consider the impact of California’s board medical privacy laws and the potential conflicts under the Employer’s Bill of Rights as codified in the Labor Code.”
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