Developments in Marijuana

Developments in Marijuana

The National Council on Compensation Insurance (NCCI) released its Countrywide Court Case Update providing a look at some of the cases and decisions monitored by NCCI’s Legal Division that may impact workers compensation across the US. 

Legalization of marijuana is an ongoing area of broad interest at the state and federal levels. In the 2019 state legislative sessions, legislatures stayed the course in taking up issues surrounding the legalization of marijuana. For example, Illinois enacted HB1438, legalizing marijuana for recreational purposes; Nevada enacted AB132, prohibiting employers from refusing employment to applicants who test positive for marijuana in a pre-employment drug test; and New Jersey enacted A20, amending its medical marijuana statute to prohibit employers from taking adverse employment actions against employees based solely on their status as a medical marijuana patient. Also, in Rhode Island, H5151 was enacted which, similar to HB 579 enacted in Louisiana last year, states that employers are not required to pay for medical marijuana costs.

State courts are also engaged in reviewing marijuana-related issues in workers compensation, as well as the workplace.

  • Oklahoma—The case of Rose v. Berry Plastics Corp. is on appeal to the state supreme court; the court of appeals concluded that the presence of THC in an employee’s blood after a workplace accident does not automatically mean that the employee was intoxicated so as to deny workers compensation benefits.
  • Florida—In Jones v. Grace Health Center, a workers compensation judge (JCC) found that Florida’s medical marijuana statute prohibits reimbursement under workers compensation, and that requiring employers and insurers to pay for a worker’s medical marijuana would violate the federal Controlled Substances Act. The JCC also determined that employers and insurers should not be required to pay for a worker’s medical evaluation to obtain medical marijuana because the cost of the evaluation would be part and parcel of the cost of obtaining marijuana. The case has been appealed to Florida’s First District Court of Appeal.
  • New Jersey—In Wild v. Carriage Funeral Holdings, Inc., the New Jersey Supreme Court is expected to review the state’s medical marijuana law to determine whether a worker—who was a state-authorized medical marijuana user—can sue his former employer for violation of a state antidiscrimination law, when the employer terminated the worker for a drug test that was positive for marijuana metabolites.

At the federal level, pending proposals seek to decriminalize marijuana (S1552), allow state regulation without federal interference (HR2093), and protect financial institutions and insurance companies that provide services for legitimate cannabis businesses (HR1595). In a recent development, the federal Court of Appeals for the Second Circuit, in Washington et al. v. Barr, declined to consider a constitutional challenge to the inclusion of marijuana as a controlled substance, ruling that plaintiffs should exhaust their administrative remedies before suing in court.