Medical Marijuana changes Employment Landscape

On January 13, 2020, in a case of first impression, the Appellate Court affirmed the Worker’s Compensation Court’s Order for the employer to reimburse its employee for the employee’s use of medical marijuana prescribed for chronic low back pain following a work related accident.

In Vincent Hager v. M&K Construction, A-0102-18T3, the petitioner, Mr. Hager, was employed by M&K in 2001, when a truck delivering concrete dumped its load onto him. As a result of the accident, petitioner experienced lower back pain that radiated down both legs. An MRI confirmed a “large L5-S1 central disc herniation causing central canal stenosis” and “annular disc bulging at L4-5.” Eventually, plaintiff underwent a laminectomy and decompression but the surgery was unsuccessful in relieving the petitioner’s pain.  Thereafter, a two-level fusion was recommended but, due to another medical condition, the petitioner could not undergo the procedure. He then began a prescribed regimen of opioid medication that did not abate the pain. 

In 2011, plaintiff did undergo the two-level fusion and subsequently attended physical therapy. Again, the surgery failed to alleviate the petitioner’s pain and, therefore, opioids were again prescribed. By 2015, petitioner’s doctor advised that it was “unlikely that his condition would improve and his long-term use of opiate medication caused a dependency.” Then, in 2016, Joseph Liotta, M.D., a board-certified hospice and palliative care physician, prescribed medical marijuana for petitioner’s intractable muscular skeletal spasticity and chronic pain. The medical marijuana provided petitioner with some relief from the incessant pain and aided his sleep; it also eliminated his dependency on opioids. Petitioner testified at trial for his Worker’s Compensation Claim in 2017 that the medical marijuana took the “edge off the pain.” Dr. Liotta testified that the petitioner will need medicine to manage his pain “for the rest of his life.”

By Order dated July 30, 2018, the Worker’s Compensation Judge required M&K to reimburse the petitioner for the costs of medical marijuana and “any related expenses.” Since petitioner and respondent’s experts agreed that there were only two treatment options to alleviate petitioner’s pain—opioids or medical marijuana—the Worker’s Compensation Judge concluded that the benefits of medical marijuana were superior to the use of opioids and was in the best interests of the petitioner.

To affirm the Worker’s Compensation Judge’s decision, the Appellate Court determined that the New Jersey Compassionate Use Medical Marijuana Act (MMA), NJSA 24:6I-6, the law authorizing marijuana for medical use, was not preempted by the Federal Controlled Substances Act, 21 USC § 841 (CSA), which makes it a crime to manufacture, possess or distribute marijuana. The Appellate Court found that complying with the MMA did not require the employer to possess, manufacture or distribute the marijuana and, therefore, the employer would not commit an offense under the CSA. Because the employer could comply with CSA and MMA, the Court held that there was no actual conflict between the laws and affirmed the Worker’s Compensation decision. 

This Worker’s Compensation decision, along with the passing of the New Jersey Compassionate Use Medical Marijuana Act in July 2019, as well as the Court’s decision in Wild v. Carriage Funeral Homes Inc., 458 N.J. Super 416, (App. Div. 2019), illustrates that the landscape for employers is changing in regard to medical marijuana. New Jersey employers now must review and possible revise their policies and procedures to comply with the State Law and the acceptance of medical marijuana in the workplace and use by its employees.  

This article was prepared by Robin Sammer Behn of McCormick & Priore, P.C. to provide information on recent legal developments of interest to our readers. This publication is in no way intended to provide legal advice or to create an attorney-client relationship. All Rights Reserved. This article may not be reprinted without the express written permission of McCormick & Priore, P.C.