It is coming, marijuana legalization, that is. Like a good Prince song, it seems inescapable. Most of the country has already legalized marijuana either medical or recreationally, and legalization efforts are afoot once more in our fair state after last year’s efforts went up in smoke.[1] Some are skeptical of marijuana legalization in Tennessee,[2] and we will see if that premonition is accurate or a pipe dream. Certainly, there is a reason for skepticism, but the political winds can change fast, particularly when the public perception of marijuana has changed somewhat drastically over the last several years.[3] With the increased acceptance of marijuana use and a clear trend towards legalization, a prudent workers’ compensation payer should begin to consider how legalized marijuana could impact workers’ compensation claims. Our focus here will be to briefly address recent trends in this area and how the issues raised could ultimately impact our state and its laws going forward.

Your first thought, dear reader, may be to ask this author what he has been smoking to suggest an employer or insurer could be required to pay for a drug for an injured worker that the federal government still classifies as an illegal “Schedule 1” drug, meaning it has no accepted medical use and a high potential for abuse?[4] However, in a case that seems representative of recent legal trends, a New Jersey appellate court recently affirmed a workers' compensation judge's ruling requiring an employer to reimburse its employee for their prescription medical marijuana.[5] In this case, the claimant, who suffered from disabling back pain for years, was ultimately prescribed marijuana by a physician, which helped the claimant with his chronic pain and helped him quit taking opioids.[6] The employer disputed whether it should pay for the claimant’s marijuana, arguing essentially two related points: (1) any payments it made towards marijuana would be, essentially, aiding and abetting the claimant in conduct deemed illegal by the federal government, i.e., obtaining illegal Schedule 1 drugs; and (2) federal law making marijuana illegal preempts New Jersey’s medical marijuana statutes.[7] The appellate court, however, found there was no conflict under its reading of the state’s law vis a vis federal law, and, in terms of any aiding and abetting argument, there was no specific intent to aid and abet the claimant in committing a federal offense.[8] The issue of reimbursement, as opposed to direct payment, was clearly key in this situation, and it may be so going forward in other jurisdictions. Indeed, court-ordered reimbursement may provide some insulation against any charges of criminal activity that could, in theory, be levied against a workers’ compensation payer.[9] After all, you are just doing what a court told you to, right?

Of course, our states are nothing, if not laboratories for experimentation. There is no guarantee Tennessee would follow the path of New Jersey. While some states like New Jersey and others are working on legislation that would specifically authorize workers’ compensation payer reimbursement for medical marijuana, other states like Illinois are specifically excluding reimbursement of such costs.[10] Interestingly, this same state has legalized recreational marijuana, which could impact workers’ compensation law in an entirely different way, particularly in terms of enforcing drug-free workplace policies and related rules.[11]

Accordingly, as we look to the future, not only must workers’ compensation payers in Tennessee ultimately consider what policies and procedures to adopt in terms of payment for medical marijuana, there could be yet further issues to address in terms of marijuana use while a worker is recuperating from a workplace injury and, yet, at the same time, trying to return to work. It should be obvious that it is unnecessary to await the legalization of recreational marijuana to appreciate what could happen if an injured worker was prescribed marijuana but also allowed to return to work in some capacity. Tennessee, of course, has a Certified Drug Free Workplace Program, and many employers have drug-free workplace policies whether certified or non-certified. How will these policies be affected? What about the intoxication defense currently codified in Tennessee Workers’ Compensation Law,[12] which is already problematic, particularly when we are talking about marijuana use and the lack of advanced enough testing to really be able to tell that the injured individual was actually intoxicated?[13]

This article merely scratches the surface on the legalization of marijuana and how it could impact workers’ compensation payers in Tennessee. We have not even gotten into medical concerns about whether perception is reality in terms of the benefits of marijuana for acute pain and decreased opioid use during recovery versus its efficacy for long-term chronic neuropathic pain relief.[14] Of course, part of the problem in addressing medical concerns is that there is relatively little scientific literature available because of federal drug laws.[15] The literature is, however, sure to grow, although it may ultimately be outpaced by legislation for legalization, particularly with the national crisis we currently face in terms of the opioid epidemic. Speaking of research, let us end on a positive note: one recent study suggests that in states with medical marijuana, there has been a decline in workers’ compensation claims filed and a reduction in average payments for claims.[16]

Rest assured the times they are changing, and a wise payer should be prepared.

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[1] https://www.commercialappeal.com/story/news/2020/02/06/sen-raumesh-akbari-filed-marijuana-legalization-bill-tennessee/4601607002/

[2] https://www.commercialappeal.com/story/news/2019/11/25/steve-cohen-backs-marijuana-reform-memphis/4275023002/

[3] Ibid.

[4] https://www.businessinsurance.com/article/00010101/NEWS08/912327793/Medical-marijuana-challenges-workers-comp-payers

[5] https://riskandinsurance.com/nj-judge-rules-workers-comp-must-pay-for-medical-marijuana/

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] https://www.businessinsurance.com/article/00010101/NEWS08/912327793/Medical-marijuana-challenges-workers-comp-payers

[10] https://riskandinsurance.com/nj-judge-rules-workers-comp-must-pay-for-medical-marijuana/

[11] https://www.natlawreview.com/article/smoking-cannabis-legally-illinois-what-s-employer-to-do

[12] Tenn. Code Ann. § 50-6-110 (2019).

[13] https://www.natlawreview.com/article/smoking-cannabis-legally-illinois-what-s-employer-to-do

[14] https://www.tn.gov/content/dam/tn/workforce/documents/injuries/2019_Winter_ADMIRABLE_REVIEW.pdf

[15] https://www.businessinsurance.com/article/00010101/NEWS08/912327793/Medical-marijuana-challenges-workers-comp-payers

[16] https://www.reuters.com/article/us-health-cannabis-workers-comp/access-to-medical-marijuana-tied-to-reduced-workers-comp-claims-idUSKBN2012MY