Ohio’s medical marijuana statute and its accompanying regulations are now in effect. Employers and employees alike have begun to grapple with their implications, including the intersection of the new law and workers’ compensation benefits. Below, we review the issues medical marijuana raises in the workplace, especially for workers’ injured on the job and their employers.
Overview of the Medical Marijuana Law
The medical marijuana law went into effect on September 8, 2018, accompanied by a detailed set of regulations established by the Ohio Medical Marijuana Control Program. Together, these laws and regulations govern the cultivation, distribution, prescription, and consumption of medical marijuana. To date, there are six dispensaries operating under provisional licenses from the state, 374 physicians who have been certified to recommend medical marijuana to patients, and, as of the end of January 2019, 12,873 patients registered in the state to consume medical marijuana. All of those numbers are expected to grow.
No Current Coverage Under Workers’ Comp
The medical marijuana law does not specifically address whether the cost of medical marijuana is covered under workers’ compensation insurance in Ohio. But, in a publication issued shortly before the law went into effect, the Bureau of Workers Compensation (BWC), which administers the state’s workers’ compensation system, did not mince words about whether it viewed medical marijuana as reimbursable. In short, it doesn’t. The BWC pointed to three reasons why, for now, the cost of medical marijuana would likely not be reimbursed.
- First, medical marijuana may be legalized in Ohio, but it remains an illegal controlled substance under federal law and as such cannot be paid for by workers’ comp.
- Second, the BWC only reimburses registered “pharmacists,” and medical marijuana dispensaries do not qualify.
- Third, the BWC only reimburses for drugs listed on its formulary of approved medications. Marijuana is not on its formulary and BWC (at least as of last year) has no plans to amend the formulary to add it.
All of the explanations cited by BWC could change with administrations and depending upon whether the federal government amends its drug laws. For now, however, workers’ compensation does not cover the cost of medical marijuana (although it will cover the cost of seeing the doctor who recommends medical marijuana, provided that doctor is a BWC-certified provider).
Medical Marijuana Use At Work Has Risks
Using medical marijuana while on the job comes with significant risks for Ohio workers. To begin with, every employer has the right to choose to maintain a “drug-free” workplace. Nothing in the law or regulations requires employers to tolerate marijuana use, medical or otherwise, by employees. This is the case even if a worker takes medical marijuana to treat the pain caused by a workplace injury. A worker who shows up to a drug-free workplace under the influence of marijuana, even medical marijuana, risks being disciplined and/or fired.
In addition, if an employee suffers a workplace injury while under the influence of medical marijuana, the law provides there is a “rebuttable presumption” that marijuana use caused the accident and resulting injury. If the employee cannot prove otherwise, that presumption will exclude the employee from receiving workers’ compensation benefits.
Ohio Workers’ Compensation Lawyer
We expect medical (and recreational) marijuana legalization to continue to generate new and novel legal issues in Ohio, and across the nation, for the foreseeable future. As state and federal laws evolve, it is inevitable the views and practices of the BWC will also shift.
At Dworken & Bernstein, we intend to stay current with these changes so that we can continue to provide sound, thoughtful advice to employers and employees alike who find themselves struggling with the legal uncertainty. To discuss medical marijuana or any other workers’ compensation-related legal matter, contact us today.
The information presented in this post is not legal advice and does not form a lawyer/client relationship. Laws and circumstances can differ and change.
Please contact us for a personal review of your situation