Medical Marijuana & Colorado Workers Compensation Law: Three Things To Know

Colorado Voters approved the decriminalization of Marijuana for medical purposes in 2000

. Under this amendment to the Colorado Constitution, individuals can follow a procedure to have a physician "recommend" medical marijuana in order to obtain a Medical Marijuana License for a "debilitating medical condition" defined broadly to include conditions include "severe pain" and "severe nausea."

It has taken over a decade the issue to begin having ripples in Workers Compensation but there are three important things you should know:

YOUR EMPLOYER DOES NOT CURRENTLY HAVE TO TOLERATE MEDICAL MARIJUANA USE - EVEN WHEN OFF WORK

The Medical Marijuana Amendment provides that "Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place." Thus far - at least in the Unemployment Claims context - the Courts are interpreting this to include even presence of marijuana in the bloodstream. So long as the employer communicates and enforces a zero tolerance policy for testing positive for marijuana - then such workers will be denied unemployment.

As of April 2012 - there are no Colorado Court of Appeals or Colorado Supreme Court decisions deciding whether other employment protections may provide protection.

WE DO NOT YET KNOW WHETHER MEDICAL MARIJUANA CAN BE OBTAINED AS A WORKERS COMPENSATION BENEFIT

Workers Compensation carrier typically point to Section 10(a), "No governmental, private, or any other health insurance provider shall be required to be liable for any claim for reimbursement for the medical use of marijuana." Although there are rare individual cases where insurance carriers have voluntarily agreed to reimburse an injured worker - in lieu of paying for more costly narcotics - there has not yet been a case where al Administrative Law Judge has ordered such a benefit and been affirmed or reversed on appeal.

At some point - we expect a case to make its way through the system so that we can have some guidance on this issue.

Despite the wording of the Amendment, it may not apply to Workers' Compensation Carriers since they do not sell "health" insurance.

HAVING A VALID MEDICAL MARIJUANA CARD WILL NOT PROTECT YOU

Although it shields a person from prosecution for State and Local charges, the Federal Government has made it clear that it does not intend to be limited in pursuing Federal charges. Most enforcement efforts have been focused on producers and sellers rather than the end user.

In Workers' Compensation, expect the insurance carrier to seek the paperwork you provided the physician who wrote the recommendation for medical marijuana. The carrier will hope you complained of pain in the same area you later injured at work, so that they can minimize the impact of your work injury.

It is not always easy to get workers' compensation benefits, and if you have been - or are currently are - a medical marijuana patient in Colorado- you need the support and and experience of a Colorado workers compensation attorney immediately.

by: Kaplan Morrell

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