SECOND QUARTER 2019
By: Charles W. Kramer
QUESTIONS: In Wisconsin, 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?
SHORT ANSWER: Wisconsin, while permitting prescribed use of cannabidiol under limited circumstances, does not yet have a robust legalized status for or program in place to regulate marijuana either medically or recreationally. Medical marijuana issues could surface in a Wisconsin WC claim if a claimant is legally prescribed the drug, perhaps by an out-of-state physician attempting to cure or relieve the effects of a compensable injury; where a claimant is terminated for lawful use of medical marijuana outside the workplace and the carrier suspends lost time benefits as a result; or where a claimant’s injury is caused by use of marijuana accessed legally.
Wisconsin law permits doctors to prescribe cannabidiol, but only under very narrow conditions. First, the physician must obtain a federal license to prescribe the drug for seizure disorder.  Once that happens, the Wisconsin physician can prescribe the drug for any medical condition. There is an important limitation on the ability to prescribe. The form of the drug prescribed must be “without a psychoactive effect.” Within these limits, the possession and use of cannabidiol is now legal in Wisconsin.
Wisconsin law limits an employer’s ability to create and enforce drug policies. Wisconsin’s Fair Employment law prohibits discrimination in employment based on “use or nonuse of lawful products off the employer’s premises during nonworking hours.” Since prescribed use of cannabidiol is now legal in Wisconsin, an employer cannot use that fact on which to base employment decisions. A drug policy cannot apply to the lawful use of medical marijuana outside the workplace.
An employer can, consistent with the law, have policies which prohibit employees from showing up under the influence at work. Wisconsin’s Worker’s Compensation Act even gives an employer defenses to indemnity payments if the injury was due to the employee’s intoxication. But since the legal use of medical marijuana is currently limited to those drugs “without a psychoactive effect,” the drugs it is legal to prescribe do not intoxicate. Medical marijuana, as it is currently positioned, would not create this defense to liability on the part of the employer.
If an injured worker is prescribed medical marijuana, the employer must tread lightly. As of this writing, however, there are no reported decisions in which an employer is forced to cover medical marijuana in conjunction with a Wisconsin WC claim. There are principles in Wisconsin’s Workers’ Compensation Act and the law surrounding it which could lead to an employer or an insurer paying for medical marijuana. Under the Act, an employer must: “supply such medical, . . . treatment, medicines, medical and surgical supplies, as may be reasonably required to cure and relieve from the effects of the injury.” So if a qualified Wisconsin doctor prescribes legal medical marijuana for a worker’s compensation injury, the employer is presumptively liable to pay for it. Of course, just like in the case of any other treatment, the employer can dispute liability for the medical marijuana if the employer has a medical opinion justifying the dispute. If there is a dispute, the resolution of the dispute is up to the Department. If the Department resolves the dispute against the employer, the employer must pay.
Under Wisconsin’s Workers’ Compensation Act, an employer is generally not liable to pay out of state treatment. This remains, in theory, possible. Such care can become payable if the line of treatment originated through a referral from a Wisconsin physician. If, after such a referral, an employee presents for instance to Minnesota, where a properly licensed physician can prescribe medical marijuana for “intractable pain,” then an employer could be pushed to cover the treatment as an incidental medical expense. We foresee issues, then, with determining the reasonable fees associated with the drug.
If your client has an employee who tests positive for marijuana metabolites in his or her blood or urine, that is not the end of the story. The employer should also inquire whether the employee has a prescription for cannabidiol or whether the employee may have been using a hemp product before taking action. In addition, if there is a claim for compensable medical marijuana in your WI WC claim, always confirm there is a referral from a Wisconsin physician to the out-of-State prescribing physician; and if not, do not inadvertently process the bills of the out-of-State prescribing physician, so you may preserve a defense to out-of-State treatment.
 Wis. Stat. §961.34(2)(a)
 Wis. Stat. §961.32(2m)(b).
 Wis. Stat. §111.311(1)
 But see Coats v. Dish Network, LLC, 2015 CO 44, 350 P.3d 849 (Employers can still terminate employees for using marijuana outside work hours because it is unlawful under federal law).
 Wis. Stat. §102.58 (“If an employee violates the employer’s policy concerning employee drug or alcohol use and is injured, and if that violation is causal to the employee’s injury, no compensation or death benefits shall be payable to the injured employee or a dependent of the injured employee.”)
 Wis. Stat. §102.42(1).