SECOND QUARTER 2019
By: Caitlin Kilburg
In Iowa, how should employers handle employees with pre-existing medical conditions who are using legally prescribed medical marijuana? Second, how should an insurer handle an injured employee who has been legally prescribed medical marijuana for treatment within a workers’ compensation claim?
In May 2017, Iowa’s previously limited medical marijuana laws underwent a serious overhaul. Iowa now boasts five open dispensaries operating in the state which are allowed to sell cannabis products to persons with certain qualifying diseases or conditions, so long as the marijuana products don’t consist of more than 3 percent tetrahydrocannabinol, or THC.
The list of qualifying diseases includes “untreatable pain” which the state defines as, “any pain whose cause cannot be removed and, according to generally accepted medical practice, the full range of pain management modalities appropriate for the patient has been used without adequate result or with intolerable side effects.” This kind of “untreatable pain” appears frequently in the workers’ compensation world and it did not take long before the issue was in front of the Agency.
An April 2018 Alternate Medical Care decision authored by Deputy Workers’ Compensation Commissioner Stephanie Copley effectively outlines the central conflict of the potential consequences of granting a claimant’s request for authorization of medical cannabis and sets precedent for reasonable denial of the authorization of prescribed medical cannabis under Iowa Workers’ Compensation law.
The defendant-employer and insurance company raised concerns that they may be in violation of federal law by financing Claimant’s treatment related to the use of marijuana. Specifically, defendants argued that such activities could be considered aiding and abetting, and if defendants financed the claimant’s marijuana, and he was later criminally charged for possession of the same, the defendants could also be charged. In response to these arguments, the claimant contended that the risk of prosecution was minimal.
Deputy Copley reasoned that, even assuming that the claimant’s contention was true, it did not change the fact that he was asking the agency to order defendants to engage in an activity that is illegal under federal law. She concluded that, “because defendants risk violating federal law if they pay for claimant’s requested treatment, it is found that the defendants’ refusal to authorize … is reasonable.” See Presson v. Freiburger Concrete & Topsoil, Inc., WCC File No. 5049542 (Alt. Care, April 28, 2018). As such, Defendants can continue to deny all requests for medical marijuana at this time.
We recommend that employers continue to maintain their drug-free workplace policies based on the most recent decision which substantiates an employer’s basis to deny coverage for medical marijuana despite state regulations permitting its use in other capacities. Furthermore, we encourage employers to follow-up with us about developments in this area of law to verify if there have been any changes, or how to appropriately evaluate how to address a situation involving a medical marijuana request in conjunction with workers’ compensation benefits.