Medical Marijuana and Workers’ Compensation in Illinois: What You Need to Know
On January 1, 2020, marijuana will become legal for recreational use in Illinois.
According to the Cannabis Regulation and Tax Act (also known as the Cannabis Act), cannabis will be taxed and regulated similarly to alcohol. The Cannabis Act also articulates protections for employers. For example, the Cannabis Act does not require employers to permit an employee to be under the influence of or use cannabis in the workplace or while performing the employee’s job duties or while on call. With the date only months away, we’ve received a number of questions about the use of marijuana for medical purposes in context of one’s employment. For example, under Illinois workers’ compensation law, is it permissible to use medical marijuana to treat an injury sustained at work? In this blog post, I address some crucial questions you may have. (Note: this post was originally published in November 2018 and has been updated to reflect the legalization of marijuana for recreational use.)
What does Illinois law say about the use of medical marijuana?
Illinois law is rapidly evolving. Under the Alternative to Opioids Act (passed in August 2018, applicants for the Illinois Medical Cannabis Pilot Program must meet certain requirements. (You can find all of the qualifying conditions at this link.) In June 2019, the Illinois General Assembly voted to make medical marijuana permanent, which will broaden the conditions under which medical marijuana can be dispensed. For instance, under the Illinois Medical Cannabis Program, only doctors can certify a patient’s eligibility for medicinal marijuana. But if under a permanent program, nurse practitioners and physician’s assistants will be able to do so as well. In addition, the Illinois medical marijuana program will include more medical conditions such as migraines. The legislation was signed by Governor Pritzker on June 25.
As of this writing, there is no blanket federal law allowing for the use of cannabis as a form of medical treatment. Congress has classified marijuana as a Schedule I drug under 21 U.S.C. § 812(c), and federal law prohibits its manufacture, distribution, and possession. 21 U.S.C. § 841(a)(1). Schedule I controlled substances lack any accepted medical use. It’s important that if you need legal assistance in this matter, you choose an attorney who understands the law in your own state.
I’m filing for workers’ compensation for an injury I sustained at work. May I use medical marijuana for pain treatment?
While some states allow cannabis to treat broad conditions such as pain, Illinois requires patients to have their doctors certify they have one of more than 35 debilitating conditions. Individuals diagnosed with one of the required debilitating medical conditions who seek the use of medical cannabis must obtain “written certification.” Written certification is defined as a document dated and signed by a physician stating that in the physician’s professional opinion the patient is likely to receive therapeutic or comforting benefits from the medical use of cannabis to treat or alleviate the patient’s debilitating medical condition or associated symptoms.
Patients must also apply for and obtain a registry identification card in order to be eligible for medical cannabis.
If you believe medical marijuana is appropriate for your situation, you will need to meet the qualifications set forth in Illinois, and your physician will need to authorize its use for treatment. Note that a physician’s authorization is going to be needed no matter what course of action you take to treat an injury under the workers’ compensation process.
Will my employer’s insurance company pay for the use of medical marijuana as a form of treatment?
Even though several states with medical cannabis statutes specifically contain language that employers do not have to pay for medical cannabis, the Illinois Compassionate Use of Medical Cannabis Pilot Program Act remains silent on the issue. While it is unclear whether workers’ compensation insurers in Illinois will be required to pay for medical cannabis, they will likely be forced to do so if all of the requirements of the Act are met. Employers can attempt to argue that authorizing medical cannabis is not reasonable and necessary.
An employer has two primary ways to challenge the reasonableness and necessity of medical cannabis use among injured workers:
- An employer can obtain a utilization review for the use of medical cannabis. A utilization review is an evaluation of the proposed or provided healthcare services to determine the appropriateness of both the level of healthcare services medically necessary and the quality of the healthcare services provided to the patient, including evaluation of their efficiency, efficacy, and appropriateness of treating. A utilization denying the reasonableness or necessity of medical cannabis as a treatment for the employee’s injuries will give the employer a basis to deny payment.
- An employer can obtain an independent medical examination (IME). If the employer does not believe the employee is suffering from a condition to warrant the use of medical cannabis, it can obtain an IME to determine whether the employee has a debilitating medical condition.
Nationwide, for example, does not reimburse medical marijuana treatment except in jurisdictions that mandate it by law. And so far, only five states — Connecticut, Maine, Minnesota, New Jersey, and New Mexico — officially require insurers to pay workers’ comp claims involving medical marijuana.
What happens if my insurance company refuses to pay for the use of medical marijuana as a form of medical treatment?
You may need to pay for the prescription out of your own pocket. Or you can get legal help.
Can a company refuse to hire me because of my use of medical marijuana?
Employers may not discriminate against an employee because they are medical cannabis patients. Mere possession of a medical cannabis registration card is not a cause for an adverse employment action.
However, employers may continue to enforce policies concerning drug testing, zero-tolerance, or a “drug-free workplace” provided the policy is applied in a non-discriminatory manner. Furthermore, employers may continue disciplining employees for violating workplace drug policies, assuming such discipline is applied in a non-discriminatory manner.
What else does the Cannabis Act say about the use of marijuana in general in the workplace?
The Cannabis Act articulates a number of protections for employers. For instance, as stated in the act, “Nothing in this Act shall prohibit an employer from adopting reasonable zero tolerance or drug free workplace policies, or employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call provided that the policy is applied in a nondiscriminatory manner.”
Among other points, the act also affirms an employer’s right to discipline employees for violating workplace drug policies (“Nothing in this Act shall limit or prevent an employer from disciplining an employee or terminating employment of an employee for violating an employer’s employment policies or workplace drug policy”).
We suggest that you understand your employer’s policies thoroughly.
How does the legalization of recreational marijuana in Illinois affect medical marijuana?
The 55 medical marijuana dispensaries in Illinois may also apply to sell marijuana for recreational use. At the same time, the issues discussed in this blog post, such as usage of medical marijuana to treat certain conditions, will continue to evolve apart from the use of recreational marijuana. It’s best to consult with qualified and experienced legal resources for questions about the workers’ compensation and medical marijuana.
Call Capron & Avgerinos
The use of medical marijuana is a dynamic issue, and it’s important that you stay abreast of the topic if you are considering applying for its use in Illinois. Call Capron & Avgerinos now at (855) 208-3904 if you have questions about medical marijuana and your employment in Illinois or Iowa. We are ready to assist you over the phone or in person. We perform our cases on a contingent fee basis, which means we are not paid unless you recover compensation for your claim. Call Capron & Avgerinos at (855) 208-3904 – let us show how we can deliver results for you.