Medical Marijuana Creates Joint Employer

By Lehr Middlebrooks Vreeland & Thompson, P.C.

February 10, 2020

At some point, we’ll run out of the medical marijuana pun, but not today. In a case of first impression, an employer was ordered to pay a medical marijuana prescription for an employee on workers’ compensation. Vincent Hager v. M&K Construction (N.J. App. Div. January 13, 2020). The workers’ compensation injury arose in 2001, when employee Vincent Hager suffered nerve damage, herniated disks and other injuries after a truck load of concrete was dumped onto him. After several years of unsuccessful treatments, Hager’s workers’ compensation physician recommended that he use medical marijuana “for the rest of his life.” The medical marijuana was prescribed in order to help diminish Hager’s constant pain. The cost of the prescription is $616 per month and the New Jersey Appellate Court ruled that that cost was properly charged as a workers’ compensation medical benefit.

At the hearing to determine Hager’s permanent and total disability, the workers’ compensation judge determined that Hager had a 65% partial total disability, 50% of which was attributed to his accident and 15% attributed to the effects of medical marijuana. The judge ordered the company to reimburse Hager for any cost related to his use of medical marijuana.

In its appeal, the employer argued that the Federal Controlled Substances Act superseded New Jersey’s Compassionate Use Medical Cannabis Act. The employer claimed that if it complied with the New Jersey law, it would violate the federal law. In rejecting this argument, the Appellate Court stated that under federal law, the “possession, manufacture and distribution of marijuana are criminal and punishable offenses, but an employer’s reimbursement of a registered [medical marijuana] patient’s use of medical marijuana does not require the employer to commit those offenses.”

The Court also addressed the fact that the New Jersey law does not require providers to reimburse those who use medical marijuana. However, the Court stated that workers’ compensation health benefits are not the same as an employer’s medical plan coverage. Therefore, the employer was appropriately required to reimburse the employee $616 a month for the rest of his life for medical marijuana prescriptions.

Thus far, we continue to see exceptions which narrow the scope of the Federal Controlled Substances Act’s impact on the workplace. For example, two courts ruled that the use of medical marijuana under the Americans with Disabilities Act necessitates an employer to consider the use as reasonable accommodation. Reasonable accommodation does not mean that the employer has to accept the risks that may be associated with lawful marijuana use, but it means that an employer may not per se reject accommodating an employee who uses medical marijuana.