Updated on September 24, 2021.
Medical content reviewed by Dr. Joseph Rosado, MD, M.B.A, Chief Medical Officer
During the 2020 lockdown, we saw the status of medical cannabis change. States like New Jersey with medical marijuana programs designated dispensaries an ‘essential service.’ That allowed the dispensaries to stay open to serve patients.
That was a big deal because it further legitimized medical marijuana. And the therapeutic importance of cannabis for patients using it for symptom management. But despite the growing acceptance of medical cannabis, it is not covered by health insurance. And that includes federally funded Medicare and Medicaid.
Lawmakers in New Jersey are offering a glimmer of hope that cannabis could be covered like other prescription medications. In two recent incidents, the New Jersey Supreme Court and appellate court ruled in favor of medical marijuana coverage for injured employees.
Can states mandate that an employer cover the cost of medical marijuana if a worker has been injured? That seems to be the new precedent. Even though the defense provided by employers who are being sued claims, they would be ‘aiding and abetting’ criminal activity. Because cannabis is still a federally prohibited substance.
The Supreme Court ruling in favor of Vincent Hager marks the third ruling that made the employer responsible for covering medical cannabis for injured employees. And a big victory for NJ patients in the medical marijuana program.
Will other states follow New Jersey’s example and make cannabis a legitimate health expense like any other prescription? It would benefit workers who sustain a long-term or permanent disability because of a workplace injury.
When Are Employers Responsible for Long-Term Healthcare Expenses?
In 2019, private industry employers reported 2.8 million nonfatal workplace injuries. In 2018, the numbers were just over 2.7 million injuries. Most workplace injuries are when employees are completing their regular duties. And the injury is accidental and without fault for the employee or the employer.
However, in some cases, the employer is responsible for the injury sustained by the individual. In normal workplace injury cases, Workers’ Compensation would take care of the injured employee. Help the employee rehabilitate so that they can return to work. Or, in some cases, train the employee in a new profession. This allows employees to transition from strenuous jobs (that they can no longer do post-injury) to other sedentary options.
If a workplace injury falls under normal circumstances, where the employer has not contributed in any way to the injury, the employer cannot be sued. However, if the employer was negligent, they may be sued in a civil court for medical expenses and lost wages.
Depending on the severity of the employees’ injuries, and the level of employer negligence, workers could get indefinite compensation. In New Jersey, there is no limit to medical treatment if it is deemed “reasonable and necessary.”
Meet the New Jersey Construction Worker Who Fought to Get Medical Cannabis Covered
When a worker is injured on the job, Workers’ Compensation is the program that helps. The employee is compensated for lost wages during a physical recovery period. Through therapies and support, and once the injuries are healed, the employee can return to work.
Workplace injuries can happen in any profession, from nurses who have back injuries to workers exposed to harmful chemicals in industrial environments. Injuries that create a disability that can make it hard (or impossible) to work can be temporary or permanent impairments.
In 2001, Vincent Hager had a construction job with M&K Construction. Vincent was 28 years old at the time. And while he was working onsite, Hager was the victim of a terrible accident. A truck dumped a complete load of cement on top of him.
Immediately following his accident, Vincent Hager was diagnosed with a herniated disc. This caused severe pain in his back and legs. Hager had multiple surgeries and tried many therapeutic approaches to resolve his chronic pain. He was prescribed opioids and developed an addiction to them.
It wasn’t until 2016 that Vincent Hagar got a diagnosis of Post-Laminectomy Syndrome with chronic pain. Post-Laminectomy Syndrome can occur after a patient has part of the vertebra that protects the spinal cord removed. Back pain can be severe, and when caused by an injury, it can be a permanent impairment.
After Vincent Hagar was diagnosed with a chronic pain condition, he qualified to get medical cannabis in New Jersey. He applied for his medical card and began to use medical marijuana successfully for pain management. Hagar was able to substitute opioids with cannabis and said that marijuana provided better pain relief.
The Employer Fought Paying for Medical Marijuana Expenses
In Court and then appeals, M&K Construction had a plausible defense. The company stated that it could not be legally compelled to pay for something illegal. If the company were required to compensate the former employee for medical marijuana, it would be “aiding and abetting” a federal crime.
Makes legal sense. Except the Supreme Court and the appellate court disagreed. Both courts stated that since the company was not directly purchasing the cannabis or delivering cannabis to the employee, they were not aiding or abetting drug use.
A permanent disability (due to negligence) can be a lifetime obligation for an employer. In this case, M&K Construction will be paying for medical marijuana expenses (including medical card renewal fees, etc.) for Vincent Hager indefinitely. But it may save the employer money.
Employers Should Note the Cost of Medical Cannabis Vs. Opioid Abuse Treatments
There are many reasons why Americans with chronic pain and other health conditions segue from opioids to medical marijuana. Many people who used cannabis before legalization did so to help with symptom management. From mental health conditions like depression and anxiety to chronic pain.
According to the National Institute on Drug Abuse (NIDA), opioid rehabilitation can be costly. For drug-assisted opioid dependence treatments (outpatient), the costs can range from $460 to $1176 per month on average. The monthly fee for inpatient treatment in 2018 was $4,383 per month.
New Jersey cannabis is expensive compared to most states. One ounce of cannabis in NJ can cost a patient about $400-$500 on average in 2021. The cost of cannabis has caused some people to buy most of their cannabis products on the black market. While still retaining their medical card for legal protections.
The cost of court-ordered compensation for medical cannabis would be, at worst, equal to the cost of outpatient opioid rehabilitation. And suppose a patient has chosen medical marijuana to segue from opioids for pain relief in the long run. In that case, that could mean fewer side effects and other health problems—a more economical route for employers.
New Jersey Advancing on Protections for Patients with a Medical Card
New Jersey is progressive in terms of legislating new protections for patients with a medical card. In 2018, a NJ Workers’ Compensation Judge awarded a similar ruling to a patient. Freehold Township was ordered to pay for medical cannabis expenses for an injured worker.
In 2020, the New Jersey Supreme Court moved to protect medical card holders at work. Employees now have the legal right to sue for wrongful dismissal because of discrimination against medical cannabis. If an employee is fired, penalized, demoted, or has any other punitive action taken against them because they are a lawful user of MMJ, they now have more legal options.
The lawful use of cannabis does not include impairment during work hours or allowing cannabis to endanger the safety of the employee or others. But it does cover employees that have a randomized employer drug test with a positive result for THC. If they are using medical cannabis after work and on weekends and have a valid medical card, employers may not take measures against the employee.
By 2022, New Jersey will waive the taxes charged for medical cannabis users. Tax revenues from the new adult-use program are adequate to fund both programs (adult-use and medical marijuana). This will allow the state to make cannabis more accessible and affordable for patients with a NJ medical card.
Next step for the state? Bring the retail cost of medical cannabis down for patients. Or allow patients to grow a few plants legally at home to subsidize the cost of medical marijuana.