Where Marijuana Is the Doctor’s Orders, Will Insurers Pay?
- Employers must use more subjective observations to judge whether an employee has become impaired from using marijuana while at work, said Ethan Nadelmann, the executive director of the Drug Policy Alliance, a group that supports legalization.
- In total, 28 states now permit or will soon permit medical use of marijuana while eight states have approved recreational use.
- “I would recommend that people use medical marijuana over opioids any day,” Mr. Vialpando, 58, said in a telephone interview.
- State legislators were considering a bill backed by workers’ compensation insurers that would have exempted them from paying for medical marijuana.
- Marijuana Company Prepares to Cross State Lines, as Legally as Possible NOV. 9, 2016
As legal use of marijuana spreads, it has raised questions in the workplace, such as about drug tests and insurance coverage for medical use.
@THEMMEXCHANGE: Where Marijuana Is the Doctor’s Orders, Will Insurers Pay?
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Early this year, a disabled former automobile body worker named Greg Vialpando explained to lawmakers in New Mexico how medical marijuana helped his chronic back pain.
State legislators were considering a bill backed by workers’ compensation insurers that would have exempted them from paying for medical marijuana. But Mr. Vialpando and another patient described how smoking the drug let them escape years of stupor caused by powerful prescription narcotic drugs known as opioids.
The lawmakers ended up dropping the bill, and Mr. Vialpando’s expenses for buying marijuana are covered by insurance.
“I would recommend that people use medical marijuana over opioids any day,” Mr. Vialpando, 58, said in a telephone interview.
For businesses and insurers, a string of ballot victories this month for marijuana advocates are adding to an intensifying conundrum about the drug and issues such as insurance coverage, employee drug testing and workplace safety.
Voters in California, Massachusetts, Maine and Nevada approved initiatives legalizing the recreational use of marijuana, while voters in Arkansas, Florida, Montana and North Dakota passed proposals for its medical use. In total, 28 states now permit or will soon permit medical use of marijuana while eight states have approved recreational use.
“We are entering this conflict between a social policy decision and a workplace that is highly regulated,” said Alex Swedlow, the chief executive of the California Workers’ Compensation Institute, a research organization.
A major part of the predicament centers on unclear science about the benefits of marijuana or the dozens of compounds, known as cannabinoids, that are found in the plant.
For its part, the Food and Drug Administration has approved only a synthetic version of a cannabinoid and a similar drug for narrow uses, such as to treat nausea in chemotherapy patients or to stimulate the appetites of patients with AIDS. Typically, health insurers will pay for marijuana-related drugs only for F.D.A.-approved uses.
But state medical marijuana laws usually give doctors permission to recommend marijuana to a patient with a “debilitating” condition, a phrase that can encompass problems including glaucoma, cancer and chronic pain.
Usually, patients pay for the drug themselves and several states have explicitly exempted workplace compensation insurers for covering such costs.
But as a result of recent state court rulings in New Mexico, workplace insurers there are required to pay for marijuana-based treatments if they are recommended by a doctor. And lower courts in Connecticut, Maine, Massachusetts and Michigan have issued rulings directing workplace insurers to do so.
The number of patients receiving such coverage is small. And because marijuana is illegal under federal law, insurers paying for the drug must use a financial workaround to avoid violations. One strategy is to reimburse patients for their costs rather than make a direct payment to a marijuana dispensary.
“The legality of this has not been tested in court,” said Ellen Sims Langille, the general counsel of the California Workers’ Compensation Institute.
State marijuana laws vary. But broadly speaking, in states that have legalized marijuana for recreational use, it is not a crime for residents to possess small quantities of the drug and it is legal for licensed dispensaries to sell it. Patients approved to use the drug and dispensaries enjoy similar protections in states with medical marijuana laws.
However, all states have retained laws that protect the right of employers to have a drug-free workplace. An employer can withdraw a job offer to a candidate who tests positive for marijuana on a pre-employment drug screening or fire an employee who tests positive.
But several states with medical marijuana laws contain provisions that bar an employer from making an adverse employment-related decision in cases where an employee approved to use the drug shows evidence of it on a screening test, said Barry Sample, a senior executive at Quest Diagnostics, one of the largest drug-testing companies in the United States.
Those same protections extend to a person who qualifies as a patient’s caregiver.
“Somebody can’t be fired for testing positive” in such states, said Mr. Sample, who is the director of science and technology for the employer solutions unit of Quest.
Despite the push toward legalization, few employers have dropped marijuana from the list of drugs for which employees are tested, compounds that typically include opioids, amphetamines and cocaine, Mr. Sample said. One exception is a hotel operator in Colorado, a state where recreational use of marijuana has been legal for several years, he added.
“They were having problems finding people,” Mr. Sample said.
As marijuana legalization expands, there are also concerns about its effect on workplace safety. Some studies suggest that marijuana use can impair a person’s judgment, though little data exists to compare the effect with that of other drugs like opioids.
In states where recreational use is allowed, the problem for employers becomes one of determining when an employee used marijuana, because detectable levels of it remain in the body for days afterward.
As a result, employers must use more subjective observations to judge whether an employee has become impaired from using marijuana while at work, said Ethan Nadelmann, the executive director of the Drug Policy Alliance, a group that supports legalization.
As for Mr. Vialpando, the disabled worker in Santa Fe, he and his wife say they have all the evidence they need that medical marijuana works.
Mr. Vialpando said that during the decade he used opioids, he withdrew from his family and friends, preferring to spend time by himself, watching television. He lost interest in food and developed sleep apnea — his wife used to wake up terrified at night because it appeared that he was dying.
These days, he smokes about four marijuana cigarettes daily. He said he had gained weight, enjoyed talking again and had resumed working on hobbies at home. His wife, Margaret, said that she hoped President-elect Donald J. Trump, when he takes office, will make marijuana a legal drug by changing how it is regulated.
“I feel like I’ve gotten my husband back,” she said. “His personality has come back to the person that he used to be.”