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Many Myths Surround Medical Cannabis, But Clarity is in the THC M


edical marijuana – also called medical cannabis – is a term for derivatives of the Cannabis sativa plant that are used to relieve serious and chronic symptoms.


Cannabis sativa contains many active compounds, but two are of interest for medical purposes: THC (delta-9 tetrahydrocannabinol) and CBD (cannabidiol). THC is the primary ingredient in marijuana that makes people “high.” CBD, the least controversial product, is an extract from the hemp plant. Hemp is the same plant – Cannabis stavia – but it is grown purposefully to contain 0.3 percent or less THC content by dry weight. Therefore, this component of marijuana has little, if any, intoxicating properties. Medical marijuana is also a byproduct of the low-THC hemp plant, and lacks enough of the THC chemical that causes the “high” that is associated with recreational marijuana consumption. Patients using CBD or medical cannabis report very little, if any, alteration in consciousness, but do report a generous amount of relief of symptoms caused by a variety of physical or mental illnesses.


finding that medical cannabis use does not need to be accommodated was based solely on its federal illegality.


Many states have already included employment protections to their medical cannabis laws, or are amending older ones to add such protections. State courts are cobbling together protections for disabled cannabis users by relying on the state can- nabis laws read in tandem with state ver- sions of the ADA. This accommodation is increasingly spilling over into recognition that medical cannabis may be recom- mended for workers’ compensation injury treatment, and that long-term use may be required for treatment of chronic, intrac- table pain. In fact, a Veterans Affairs medical center survey found that 41 percent of patients who admitted to both cannabis and opioid use reported a decrease or cessation of opioid use due to marijuana use as an alter- native. The most common reported reasons, according to the VA, were “better pain management” (36%), fewer side effects (32%) and withdrawal symptoms (26%). Similar benefits were found in an Israeli


study, which found that medical cannabis mitigated symptoms and reduced the need for prescription medications among elderly nursing home patients – patients experi- enced reduced pain, increased appetite, better mood, improved sleep and dramatic improvements in symptoms of spasticity. Patients were most likely to eliminate their use of opioids, anxiolytics, and anti-depres- sants after initiating cannabis therapy.


Employer and Employee Dialogue If a worker is injured, effective dialogue should begin, and if a worker will need to


28 // May-June 2021


continue using any potentially impairing medication – whether cannabis or an opioid – they should disclose this before returning to work so that fitness for duty can be established, and an alternative non-safety-sensitive position provided where feasible while the medication must be utilized during working hours. The injured worker who opts to use legal medical cannabis may want to be reim- bursed for the cost of the medication, just as they would be for prescribed opioids or other legal drugs used for workers’ com- pensation treatment. This is an evolving area of law, with new cases being decided regularly, and many workers’ compensation cases do not get reported until they reach a precedential appellate level. At present, only four states have held that employers/ workers’ compensation carriers do not have to reimburse workers for medical cannabis: Florida, Massachusetts, Michigan, and North Dakota. The states that have held that workers must be reimbursed for treat- ment with medical cannabis are: Arizona, Connecticut, Hawaii, Maine, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Rhode Island and Vermont. Employers in Maine, New Hampshire and New Jersey argued in court that reim- bursing workers would make them “drug dealers” essentially, but the courts all found there was not a tension with the federal Controlled Substances Act, because the employer was not being required to possess, manufacture, or distribute the drug but only to reimburse its employee for the pur- chase of medical marijuana; therefore, the employer faced no threat of prosecution. These decisions are likely to change case law in Pennsylvania as well.


Liberty Mutual Insurance recommends a forward-thinking claims framework so that businesses can prepare for emerging treat- ment of workplace injuries with medical cannabis, which may offer the best out- comes for injured workers. For example, Liberty Mutual uses ana- lytics to identify injured workers who may be at increased risk for opioid dependency, as well as tracking physicians who may be prescribing opioids too early or too often. Employers can use their workers’ compen- sation insurance carrier as an ally in pre- vention of opioid addiction, drug abuse in the workplace, and careful management of cannabis use, in the states where that is an option for treatment.


Employers will also need to confer with insurance and counsel before returning medical cannabis patients to the workplace after an absence due to a workers’ com- pensation injury, as heavy use can result in a positive urine test for up to 77 days after last use. A staggered return program, perhaps initially into a non-safety-sensitive role until the cannabis clears the worker’s system may be one option to consider, as well as remote work for a period of time where that is an alternative. For employees covered by DOT rules for commercial drivers, zero tolerance for cannabis remains the law until further notice, and workers cannot be returned to DOT safety-sensitive roles until they have cleared a drug screen. Ultimately, the best practice is to view workers who use medical cannabis as part of their recovery from workers’ compen- sation injuries as workers with a medical condition, rather than workers who are “drug abusers.”


Adele L. Abrams is an attorney and safety professional who represents companies in litigation with OSHA and also provides


safety training and consultation. The Law Office of Adele L. Abrams PC has three offices: Beltsville, MD; Denver, CO; and Charleston, WV. She may be reached at www.safety-law.com or 301-595-3520.


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