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Does Workers’ Compensation Cover the Use of Medical Marijuana?

Posted by Carmine R. Villani | Apr 20, 2015 | 0 Comments

medical marijuana

Very few things have divided our nation quite like the debate over medical marijuana has. Cannabis has a long history of use for medicinal reasons, spanning over hundreds of years. In fact, it was once totally legal in the United States, and was regulated by legislature, including the Pure Food and Drug Act of 1906, and the Marijuana Tax Act of 1937. It wasn't until The Comprehensive Drug Abuse Prevention and Control Act, also called the Controlled Substances Act, came along in 1970 that it was classified as a Schedule I substance.

The States and the Federal Government Still Don't Agree on the Legality of Marijuana

Just as it was in 1970, marijuana remains a Schedule I substance in the eyes of the federal government today. This means it's illegal to have it, sell it, distribute it, purchase it, and even to prescribe it, anywhere in the United States. However, in 1996, California did the unthinkable, and legalized it for medical purposes. Since then, 22 additional states have legalized it to varying degrees as well, and several more are working to legalize it in the near future. Each jurisdiction has also set its own limits as to how much is permitted, and in what form it can be held. For instance, Oregon allows residents to have up to 24 ounces, plus 24 plants in varying stages of growth. New Jersey does not permit any personal plants, though the Garden State allows patients to have up to 2 ounces in a 30-day period.

Workers' Compensation Coverage of Medical Marijuana Varies, Too

People who reside in a state that has not passed legislation to allow medical marijuana are not likely to have any coverage. With that said, each employer can select a different insurance company, and each insurance company usually has numerous workers' compensation policies for employers to purchase. In this respect, it's similar to how medical insurance works. It's possible to have a medical policy through an employer which will cover certain prescriptions, and then switch policies, and lose coverage of those same prescriptions. So, depending on the level of coverage and benefits available through a particular workers' compensation policy, an individual may or may not have coverage for medical marijuana.

The Courts Can't Agree Either

In a recent case in California, a Workers' Compensation Administrative Law Judge ruled that an injured worker was entitled to compensation from an insurance company for medical marijuana. The insurance company then fought the ruling, and had it overturned because California law also stipulates that any kind of health care service plan cannot be compelled to provide compensation for medical marijuana. On the other hand, a New Mexico court determined that it is the “functional equivalent of a prescription.” There is also a present debate as to whether the Americans with Disabilities Act applies, and if those who use medical marijuana are protected under law. Thus far, there haven't been enough cases to determine which direction America will lean, and it's up to each jurisdiction and company to decide on its own.

Contact An Experienced Attorney Immediately

Because the laws can be complex, it's a good idea to consult with an experienced workers compensation and marijuana attorney at Villani & DeLuca P.C. if you have questions about what you're rightfully entitled to. For a free consultation, please contact us at 732-709-7757.

About the Author

Carmine R. Villani

Founding partner, Carmine Villani, Esq. is a former municipal prosecutor with over three decades of experience in Criminal and DWI Defense.


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