In what is believed to be a first of its kind decision, a New Jersey Appellate Court recently upheld the order of a worker’s compensation judge requiring an employer to reimburse its employee for the cost of medical cannabis.
The employee, a construction worker, was injured on the job. To assist with pain management, sleep, and to limit the employee’s need for opioids to manage pain, his treating physician prescribed him medical cannabis under that state’s Compassionate Use of Medical Marijuana Act (“CUMMA”), a statute very similar to Illinois’s Act of the same name. Since cannabis, regardless of whether it is used for medical reasons, is still illegal under the federal Controlled Substance Act (“CSA”), the employee’s health insurance did not cover the cost of the prescription and he began paying about $616 per month for medical cannabis, which reportedly successfully curbed his need for opioids and managed his pain. As part of his worker’s compensation claim, the employee sought recovery of that expense.
A worker’s compensation judge agreed with the employee and awarded the cost of medical cannabis to be reimbursed to the employee. The employer appealed arguing that reimbursing the cost of medical cannabis violated federal law because it would result in the employer aiding and abetting a violation of the federal CSA. The court rejected that argument, finding that:
“[u]nder the CSA, the possession, manufacture, and distribution of marijuana is a criminal and punishable offense. But an employer’s reimbursement of a registered [medical marijuana] patient’s use of medical marijuana does not require the employer to commit those offenses.”
The Appellate Court also noted that the employer could not point to any reported prosecutions of CSA violations in states allowing medical cannabis for offenses related to its use. Similarly, the court found that the employer’s reimbursement for the cost of medical cannabis did not violate the CUMMA statute which expressly provides that a health insurer is not required to reimburse a person for the costs associated with medical marijuana, because health insurance does not include workers’ compensation coverage.
Employers should expect worker’s compensation claimants to increasingly include the use of medical cannabis as part of their treatment and seek reimbursement of that cost directly from employers. Although Illinois courts have yet to face such a claim, New Jersey may have paved the way for similar claims in other states.