Impending Legalization of Marijuana in Virginia Raises New Issues for Workers’ Compensation Compensability

In this article from the June 2021 edition of the Workers’ Compensation Defense Digest:

• Legalization in Virginia
• New Code Addresses Use of Cannabis Oil Among Working Adults
• Willful Misconduct Due to Intoxication from Marijuana Use is Still a Viable Defense to Compensability
• Expect Increase in Requests for Coverage of Marijuana Expenses
• Marijuana Expenses Reimbursement Complicated by Federal Law

Legalization in Virginia

Effective July 1, 2021, Virginia will become the first southern state to legalize adult use marijuana. It will join 16 other states, as well as the District of Columbia to allow those over the age of 18 to use and possess recreational marijuana. Adults will be able to possess up to one ounce and can grow up to four marijuana plants for personal use per household. A total of 36 states as well as the District of Columbia also recognize the use of medical marijuana. Although Virginia has had some form of legalization of medical marijuana since 2015, there are bound to be new issues raised related to the compensability of workers’ compensation claims while under the influence of recreational marijuana as well as the medical necessity and reimbursement of medical marijuana expenses.

New Code Addresses Use of Cannabis Oil Among Working Adults

The legalization of recreational marijuana may very well lead to a rise in use among the adult working population. As a result, Virginia enacted §40.1-27.4 in conjunction with the legalization which will prohibit employers from disciplining, discharging, or discriminating against an employee for his or her lawful use of cannabis oil so long as the use is pursuant to a valid written certification issued by a health care practitioner for the treatment of the employee’s diagnosed condition or disease.

However, the law does not restrict an employer’s ability to take any adverse employment action for any work impairment caused by the use of cannabis oil or to prohibit possession during work hours.  

Willful Misconduct Due to Intoxication from Marijuana Use is Still a Viable Defense to Compensability

Pursuant to Va. Code §65.2-306, a claimant may not recover workers’ compensation benefits when the cause of the accident is due to his intoxication or use of a non-prescribed controlled substance. Although marijuana will soon be legal for adults to use in Virginia, if the claimant’s accident is caused by his intoxication with marijuana and the marijuana was not prescribed, the defendants will have a viable willful misconduct defense. 

For marijuana use, a positive drug test does not necessarily provide enough proof that the claimant was intoxicated at the time of the accident. If a positive drug test result comes from a Substance Abuse and Mental Health Service Administration (SAMSHA) certified laboratory, a presumption of intoxication applies. However, drug tests are not frequently performed at SAMSHA laboratories so this defense is not used frequently.

If a claimant does test positive for marijuana and the presumption does not apply, the employer and carrier still bear the burden of proving that the use of marijuana was the proximate cause of the injury.

The effects of marijuana typically include relaxation and euphoria, but can also cause paranoia, confusion and hallucinations. As such, while testing positive for marijuana post-injury may preclude recovery in a case where a claimant was involved in a motor vehicle accident immediately after smoking a joint, it would not likely prevent recovery by a claimant who injured their back while loading a truck with boxes. 

A willful misconduct defense applies to the use of non-prescribed controlled substances and not substances which are prescribed. Therefore, it may be difficult to defend these cases in situations where a claimant has a prescription card for marijuana or other substances.

Expect Increase in Requests for Coverage of Marijuana Expenses

The legalization of marijuana may also lead to an increase of requests for marijuana expenses to be considered medically necessary and covered under worker’s compensation. A claimant may use marijuana on a recreational basis with some perceived results of a decrease in pain from a work injury. He may feel more comfortable discussing a prescription for marijuana with his doctor once it is legal and a doctor may be more inclined to prescribe it. There are studies that claim marijuana usage is effective in providing some modicum of relief for those with chronic pain, especially neuropathic pain. In addition, other studies claim that the use of marijuana can reduce the need for opioids. However, most medical literature is of the opinion that higher quality controlled studies are needed before any such claims can be substantiated. 

Marijuana Expenses Reimbursement Complicated by Federal Law

The primary defense raised by employers to challenge the requirement of reimbursement of costs associated with medical marijuana has been that marijuana is still illegal on a Federal level. Therefore, the argument is that to require employers and carriers to authorize such expenses would be asking them to break the law, even if state law is to the contrary. A carrier in Massachusetts prevailed using this theory in October 2020 in Wright’s Case, 486 Mass. 98 (October 2020). In addition, Workers’ Compensation Commissions in Florida, Michigan and North Dakota have all denied reimbursement of medical marijuana for similar reasons. 

Conversely, Commissions in New Jersey, New York, New Hampshire, Connecticut, Minnesota, Maine and New Mexico have ruled that medical marijuana is subject to reimbursement under workers’ compensation despite Federal law. Delaware recently denied reimbursement of medical marijuana on the grounds that it was not reasonable or medically necessary, laying the framework for claimants to pursue it if they have evidence in support.  See Nobles-Roark v. Back Burner, 2020 Del. Super. LEXIS 386, 2020 WL 4344551 (July 28, 2020).

It does not appear that Virginia has been asked to weigh in on the subject of whether Federal law pre-empts state law on the issue of reimbursement for medical marijuana. In addition, it does not appear Virginia has ruled in any way providing direction on whether medical marijuana is reasonable and medically necessary to treat workers’ compensation injuries. However, with the legalization of recreational marijuana and a possible increase of requests for reimbursement of medical marijuana expenses, it is likely that the Virginia Workers’ Compensation Commission will have to address these issues in the near future.

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