California residents voted in favor of Proposition 64 on Election Day and that means recreational marijuana is now legal throughout the state. Much has been made of what that means in terms of criminal law, but for many Californians, it's just as important to know how legal marijuana might affect the workplace - and in particular, workplace injuries.
Because the law only recently changed, it's impossible to know exactly how workers will be affected, but based on other states with similar laws as well as previous legal challenges involving legal medicinal marijuana in California, we can start to see the picture. The California Workers' Compensation Institute recently published an analysis of how Proposition 64 affects the workers' compensation system. Here's what you need to know.
Conflicting laws apply to insurance claims for medical marijuana
Although marijuana is now legal for both medicinal and recreational purposes in California, it's still considered a Schedule I controlled substance under federal law. Insurance companies can cite that federal law in order to deny a claim for medical marijuana treatment for an industrial injury.
However, while California law specifically does not require insurers to pay for medical marijuana, it does require the workers' compensation insurance company to pay for "reasonable and necessary" treatment for such an injury. As such, if a medical professional recommends marijuana as a "reasonable and necessary" treatment for your injury, then at the very least, there would be pressure on the insurance company to pay for that treatment.
This is potentially more likely to happen under the new law because certain medical professionals who commonly treat injured workers, such as chiropractors and nurses, cannot write a prescription for medical marijuana - but they now can recommend that an injured worker buy recreational marijuana.
If an insurance company pays for marijuana, claims process could be tricky
Assuming that a California workers' compensation insurance company did agree to pay for medical marijuana, the process to actually pay that claim would be difficult. That's because, unlike pharmacies, marijuana dispensaries are cash-only businesses - marijuana is illegal under federal law, so transactions can't go through the federally regulated bank system. When such claims have been paid in other jurisdictions, the insurance company generally reimburses the injured worker directly when the worker provides a receipt from a marijuana dispensary.
Another hurdle is the process the insurance company has to follow to actually approve medical treatment. Workers' compensation requires a utilization review (UR) to evaluate, among other things, whether a prescribed dosage is appropriate. The problem with medical marijuana is that it doesn't have a standardized dosing protocol. Marijuana can be smoked, eaten, vaporized, mixed in an oral tincture or administered via transdermal patch, and the potency depends not only on the method of delivery but also on the strain and growing techniques. There is no standardized potency guideline because the FDA does not regulate marijuana. Ultimately, this means that the patient, not the doctor, ends up determining the appropriate dosage.
Without any accepted guidelines on what is or is not appropriate, getting a claim for medical marijuana through the UR process would be exceptionally difficult. That means the most likely route for an injured worker to get reimbursement for medical marijuana would be a negotiated settlement with the insurance company, and you'd need an experienced attorney who understands the complexity of the law to get a fair settlement in such a case.
Under-the-influence injuries could lead to denied claim - but law favors workers
So far, we've primarily discussed marijuana as a treatment that could be used for an on-the-job injury, but with the new law in place, it's worth taking a look at cases where marijuana use is involved in causing a workplace injury.
In general, workers' compensation is a no-fault system, meaning that even if the injury was your fault, your employer is required to pay for your treatment and wage loss as long as you were working at the time of the injury. However, there are a few exceptions, and one comes up when the worker was intoxicated at the time of the injury. For instance, someone who was injured while driving for work and found to be under the influence of alcohol at the time of the accident would normally not be able to collect workers' compensation.
In theory, being under the influence of marijuana works the same way: If the employer can prove that you were impaired, your injuries are most likely not compensable. But the burden of proof is on the employer to show that marijuana (whether medicinal or recreational) was the proximate cause of your injury, and that's usually very difficult. That's because marijuana, unlike alcohol, remains in the user's system even after the drug's effects have worn off - so even if you failed a drug test, there's no proof that you were impaired at the time of the accident - and there is no scientifically proven method to objectively measure impairment.
That means it's generally very difficult for an insurance company to deny a workers' compensation claim based on marijuana use - but that certainly doesn't mean they won't try. If you're involved in a claim where the insurance company tries to deny your benefits based on your marijuana use, you need to contact a California attorney right away to protect your rights.