Issues Pertaining To Marijuana and Workers’ Compensation

We know that marijuana is a Schedule 1 drug prohibited from use or sale under federal law, but New Jersey recognizes medical marijuana and has legalized marijuana for recreational use.  The New Jersey Supreme Court in 2021 decided Hager v. M&K Construction, which held that employers can be required in a workers’ compensation case to reimburse an injured worker for the total cost of medical marijuana as prescribed by the employee’s physician. 
In the Hager case, the New Jersey Supreme Court held that a Judge of Compensation can properly find that medical marijuana constitutes reasonable and necessary treatment, just like other prescribed medications or procedures. The Court did not require the employer to pay the marijuana dispensary for the cost of marijuana, but it held that the employer or carrier must reimburse the employee for his or her payments to the dispensary.  The doctor who testified on behalf of Mr. Hager said that Mr. Hager would likely need marijuana for life.  At the time of the Hager case, the cost was $616 per month for three ounces of marijuana. 
One question employers have been asking is whether there is any defense to the employer in workers’ compensation cases like Hager.  Should the employer just pay for the cost of medical marijuana or can the employer argue that it should not have that obligation?  The decision in Hager turned heavily on statements by the injured employee to the effect that he had been able to wean off opiates by using medical marijuana.  That issue may not exist in other cases, so employers should try to distinguish their case from the facts in Hager.  If the employee is going to continue to use opiates and use marijuana simultaneously, an employer may be able to convince a Judge of Compensation that marijuana is not reasonable at all.  
Many pain medicine doctors do not believe that it is safe or healthy to prescribe marijuana for injured employees who have severe pain, neither on a short-term nor long-term basis.  When a municipality has a case of this nature, the choice of the authorized pain medicine physician will be crucial.  There is a wide divergence of opinion among pain doctors on the subject of the effectiveness of marijuana in curing or relieving pain.  Although the Supreme Court sided with the employee’s doctor in the Hager case, every case is fact specific. 
Pain doctors who oppose the use of marijuana in workers’ compensation cases point out that there is no dosage prescribed for marijuana unlike other medications.  The physician who approves the use of marijuana may not provide guidance on how often to use marijuana or how many days per week.  Frankly, the doctors generally leave it up to the employee.  This is a problem with marijuana as opposed to other medications. In addition, it is very hard to tell when an employee actually used prescribed marijuana because testing is not date specific.  THC can show in the body for up to 30 days.  Another major concern is potential overdose:  users of edible marijuana may accidentally overdose because they do not know exactly how potent the edible is that they are consuming. These are some reasons that many pain medicine physicians oppose the use of marijuana in the workers’ compensation arena. 
A huge issue for all employers is whether they can deny an accident when they believe the accident was caused by an impaired employee using marijuana.  Suppose a municipal DPW worker has a one-car accident and is seriously injured.  The investigating officer detects a strong odor of marijuana.  NJSA 34:15-7 allows an employer to deny an accident caused by impairment by drugs or alcohol but the employer has to show that the drugs or alcohol were the sole cause.  If the judge believes that there were other contributing causes – such as icy road conditions – then the employer will have to pay the claim.  This sole cause statute is archaic and should be addressed by the Legislature.  Employers almost never win similar cases when an employee is intoxicated with a high blood alcohol level because the employee is always able to cite to other contributing cases for the accident besides the use of alcohol.
Employers can require an employee to undergo a drug test upon reasonable suspicion, or a random drug test, or a drug test following a work-related accident.  But a positive drug test alone will not be enough to terminate employment.  The New Jersey Cannabis Regulatory Commission issued a Guidance on September 9, 2022.  That Guidance emphasizes that that the employer needs more than positive testing; it also needs objective evidence of impairment to support job action, such as an odor of marijuana, or red eyes, or slurred speech.  The State has not issued guidelines yet on soon-to-be required “Workplace Impairment Recognition Experts.”  In the meantime, employers may designate an internal staff member or third party contractor to assist with the determination of suspected marijuana use during work hours.  The employee should be trained and qualified to complete the required Reasonable Suspicion Observation Report.  Municipalities are strongly encouraged to adopt Drug Free Workplace Policies to be able to support job action issues in the future. 
One does not need to qualify as a prophet to predict that there is going to be a lot of litigation generated from job terminations of employees suspected of being impaired at work from using marijuana.  Positive testing after work injuries will certainly be one area of such likely litigation both in civil court and workers’ compensation court
John H. Geaney, Esq.,
Capehart Scatchard