Medical Marijuana – Can it be Considered Reasonable and Necessary Treatment in a Workers’ Compensation Claim?

To date, twenty states and the District of Columbia have legalized the use of marijuana for medical purposes. In addition, two states have legalized the recreational use of marijuana as well (Colorado and Washington). With the medical use of marijuana recognized by so many states, it is possible that Ohio employers may run into situations where their injured workers will request the use of medical marijuana for treatment. Although there appears to be a growing trend towards leniency for those who use marijuana, there still is a great deal of confusing data and varying opinions on the appropriateness of marijuana as a medical supplement and the general risks associated with its long term use.

Even though many states do not consider it a crime to utilize marijuana for medical reasons, that does not necessarily mean it should be considered reasonable and necessary treatment in all situations. Moreover, employers should not feel that they are required or compelled to approve the use of marijuana as medical treatment. Please keep in mind that marijuana is still considered a Schedule I drug under federal law and federal law still criminalizes the use, possession, and distribution of marijuana. Under federal law marijuana is treated like every other controlled substance, such as cocaine and heroin. As a Schedule I drug, the federal government views marijuana as highly addictive and having no medical value. Also, the federal laws do not qualify possession by any set amount. Possession of any amount of marijuana is punishable. For these reasons, employers should be able to make a reasonable argument that because of the federal restrictions on the use and possession of marijuana, as well as its listing as a Schedule I drug, marijuana should not be paid under their Workers’ Compensation programs. Why should an employer be required to pay for the use of an illegal substance under its Workers’ Compensation program? The Department of Transportation still does not authorize medical marijuana as legitimate treatment for an active driver. A positive test for marijuana could lead to loss of license for that driver.

It is certain that we will see this issue more frequently as both the recreational and medical use of marijuana expands. Also, in litigious workers’ compensation systems like Ohio’s, there certainly could be situations where a Hearing Officer would approve of the use of marijuana if the claimant resides in a state where it is allowed for medical use. However, employers should still challenge that usage because marijuana remains a Schedule I drug and is illegal under federal law.