MONTANA SELF INSURERS’ ASSOCIATION - MSIA
Medical Marijuana In Workers’ Compensation
Workers’ compensation systems around the country are struggling with the issue of whether or not to include medical marijuana in their workers’ compensation systems.
Current Montana law, even with the 2020 passage of initiatives providing for recreational marijuana use in Montana, recognizes there is a place for medical marijuana. The workers’ compensation system, because marijuana remains a federally banned substance and does not have a proven track record of efficacy, is statutorily not required to pay for it. Most state workers’ compensation systems are not required to pay for medical marijuana. Generally, workers’ compensation systems do not pay for experimental or unproven medical procedures or drugs. That is the case with the Montana system as well; Montana law requires the payment for reasonable and necessary medical treatments to address the work-related injury. Reasonable and necessary medical treatment has been defined as excluding experimental treatments or drugs.
There is much anecdotal information regarding the medical use of marijuana. There is far less information or research quantifying dosages, delivery methods (smoking, eating or drinking) or the effects of the drug. No one can quantify how much marijuana will create a dangerous situation should the user decide to drive, for example. There is no credible science at this time upon which to base an impairment evaluation and thus no way to address potential safety concerns.
Current Montana law does not require the permissible use of medical marijuana to be reimbursed within the workers compensation system. Since marijuana cannot be legally prescribed under federal law, the Montana statute permits its use, but does not require its use or reimbursement.
MCA 50-46-320 states:
(4) Nothing in this part may be construed to require:
(a) a government medical assistance program, a group benefit plan that is covered by the provisions of Title 2, chapter 18, an insurer covered by the provisions of Title 33, or an insurer as defined in 39-71-116 to reimburse an individual for costs associated with the use of marijuana by a registered cardholder;
(b) an employer to accommodate the use of marijuana by a registered cardholder;
(c) a school or postsecondary school to allow a registered cardholder to participate in extracurricular activities; or
(d) a property owner to allow a tenant who is a registered cardholder, provider, marijuana-infused products provider, dispensary, or testing laboratory to cultivate, manufacture, dispense, sell, or test marijuana, marijuana concentrates, or marijuana-infused products or to allow a registered cardholder to use marijuana.
(5) Nothing in this part may be construed to:
(a) prohibit an employer from including in any contract a provision prohibiting the use of marijuana for a debilitating medical condition; or
(b) permit a cause of action against an employer for wrongful discharge pursuant to 39-2-904 or discrimination pursuant to 49-1-102.
And, in the workers compensation law, MCA 39-71-407
(6) (a) An employee who has received written certification, as defined in 50-46-302, from a physician for the use of marijuana for a debilitating medical condition and who is otherwise eligible for benefits payable under this chapter is subject to the limitations of subsections (6)(b) through (6)(d).
(b) An employee is not eligible for benefits otherwise payable under this chapter if the employee's use of marijuana for a debilitating medical condition, as defined in 50-46-302, is the major contributing cause of the injury or occupational disease.
(c) Nothing in this chapter may be construed to require an insurer to reimburse any person for costs associated with the use of marijuana for a debilitating medical condition, as defined in 50-46-302.
(d) In an accepted liability claim, the benefits payable under this chapter may not be increased or enhanced due to a worker's use of marijuana for a debilitating medical condition, as defined in 50-46-302. An insurer remains liable for those benefits that the worker would qualify for absent the worker's use of marijuana for a debilitating medical condition.
States have struggled with medical marijuana under their workers’ compensation laws. 10 states, in addition to Montana, have specifically denied medical marijuana as part of their workers’ compensation laws (AZ, CO, FL, IA, LA, MA, MI, ND, PA and WA). Some have statutory language, some by Court interpretation. Three states specifically require workers’ compensation to cover the costs of medical marijuana, all by Court decision (CT, NJ and NM). Most state laws do not specifically address medical marijuana within their workers’ compensation statutes.
We are not ready to determine that medical marijuana has a place in the Montana workers’ compensation statute. We support the current law permitting medical marijuana and excluding it from the workers’ compensation system. When there is monitoring and dosage standardization, medical marijuana may have a place in our health care and workers’ compensation systems. Much like the use of alcohol, most jobs require full attention
At the same time, we recognize our society is changing. We support continued research and testing so that standardization can be achieved in the safe use of marijuana. Like any drug, or alcohol, dosage is important for safety as well as regulation of access by children.