It’s no secret there is an opioid crisis in this country. Millions of Americans – including injured workers – are prescribed opiate pain medications. Seen as an effective substitute for such drugs, many individual states have legalized the use of medical marijuana.
Illinois’ Alternatives to Opioids Act: Although more than thirty states provide for some use of medical marijuana, Illinois has gone one step further. Enacted on August 28, 2018, the Alternatives to Opioids Act (the Act) expanded use of medical marijuana to 40 qualifying conditions and created the Opioid Alternative Pilot Program. Launched in late January 2019, the Pilot Program is the first of its kind in the nation in allowing qualified patients access to medical marijuana in place of prescription opioids. With written certification from a treating physician stating he or she is likely to receive therapeutic benefit from medical cannabis use, patients may apply to the Program. Once approved, they may purchase up to 2.5 ounces of medical marijuana every two weeks with physician certifications renewable every 90 days.
Impact on Workers’ Compensation Claims: Countless injured workers in Illinois are prescribed opioid medications. The ability of such workers to participate in the Opioid Alternative Pilot Program presents certain issues for employers and their representatives. The initial concern is whether employers, third party administrators, and carriers are liable for reimbursement of costs associated with medical marijuana use. Currently, there is no language in the Act addressing whether reimbursement is required. To date, only five states have mandated reimbursement while one state – Michigan – does not require employers to reimburse injured workers for costs associated with use of medical marijuana. Exclusionary language found in earlier legislation suggests that Illinois would not require reimbursement, but the issue is likely to be litigated with the Illinois Workers’ Compensation Commission weighing in.
In addition to the liability question, use of medical marijuana by injured workers may not be reasonable and/or necessary to cure or relieve the effects of a work injury as required under the Illinois Workers’ Compensation Act. Utilization Review determinations and Independent Medical Examination opinions could refute the reasonableness and necessity of medical marijuana (and for that matter opioid drug) use by injured workers.
Other Considerations: Employers should continue to enforce drug-free workplace policies including zero tolerance and drug testing with appropriate discipline. While these policies must be applied in a nondiscriminatory manner, the use of medical marijuana may be problematic for injured workers. And if an injury occurs while a worker is impaired due to use of medical marijuana, an intoxication defense might apply. Interestingly, federal law continues to classify marijuana as a Schedule I drug with no accepted medical use and to prohibit its manufacture, distribution, and possession. Thus far, the federal government has taken a “hands off” approach to medical marijuana, but the growing legalization of recreational marijuana use may force a showdown.
Illinois’ Act and its Pilot Program remain in effect through June 2020, but with applications pouring in and a new state administration, medical marijuana appears here to stay. This writer, along with our experienced NBKL defense attorneys, can assist with workers’ compensation claims involving the use of medical marijuana and best practices’ response to the Illinois Alternatives to Opioids Act.