Legal Marijuana and Comp: Let’s Talk Testing

For workers’ comp insurers and employers across the nation, much has been made of legalization and its potential effect on medical care, and in particular, prescription benefits management. For example, does a multi-state insurer based in a marijuana prohibitive state have to pay for a marijuana prescription in another state where such an option is legal? If accepted, should marijuana be subject to weaning programs similar to opioids? Are the risks actually comparable?

Medical issues have yet to become a major concern for comp carriers here in Louisiana, as marijuana remains illegal here, yet the prescription question has dominated the debate. However, marijuana and its potential relationship with comp goes far beyond a simple prescription.

Louisiana Comp Blog took a different tack, and instead sought answers to the questions surrounding accurate testing of impairment while under the influence of marijuana, plus the potential effect on accident frequency and employee morale if medical marijuana (historically, a stepping stone to wider, recreational reforms) were to become legal and available to injured workers on comp and others in the workforce with qualifying conditions here at home.

Across the nation and in Louisiana, the cultural shift in attitudes toward marijuana use is a present reality, with some advocates already pegging the 2015 legislative session in our state as the death knell for marijuana bans. In fact, in typical theatrical fashion, the Louisiana Cannabis Coalition, Louisiana Herbs and the LSU Chapter of Students for Sensible Drug Policy hosted a “jazz funeral” for marijuana prohibition October 11th in the French Quarter.

Indeed, the 2014 legislative session in Louisiana seemed to be a potentially progressive year for pro-marijuana advocates seeking legal changes for the either medical or criminal aspects of the debate. A full dozen bills were introduced from both sides of the aisle and both chambers. They addressed a full range of reforms, including marijuana as a source of tax revenue, how medical marijuana would be prescribed, and criminal penalties and probation regulations. Only one of the ten most notable marijuana bills, HB 681, moved past introduction where a committee is assigned; HB 681 passed 30-7. That bill amends the definition of “technical violation” of probation to include misdemeanor possession of marijuana, thus reducing the caliber of that offense. The act became effective August 1, 2014, all others are dead for the session.

Medical marijuana by state via The New York Times
Medical marijuana by state via The New York Times

Despite the momentum that legalization and advocacy for marijuana has enjoyed throughout other parts of the country, the science surrounding accurate testing of marijuana for impairment at work or for DUI thresholds remains far behind recent legislative progress. In particular, thresholds for impairment are extremely variable from person to person and depend largely on frequency of use and THC concentration of the administered marijuana – even in controlled studies on closed driving courses or in simulators.

The most precarious aspect of the testing dilemma for workers’ comp would likely be how to treat patients that may have legitimate prescriptions for medical marijuana and thus test positive in a post-accident drug screening for THC metabolites or even a detectable blood concentration. Barring significant legislative adjustments in conjunction with medical marijuana legalization, there would likely be no immediate protections for medical marijuana users should a workplace accident occur.

Local attorney Greg Hubachek, of Workers’ Compensation LLC explained, “As the law stands, the intoxication defense [to deny the compensability of a claim] applies no matter what, whether the marijuana use is medical, legal or illegal……where we’re going to run into issues is in the testing and post-hire questionnaires.” Further, claim denial could easily result in litigation if a patient had a legitimate prescription, due to the inherent difficulties for testing actual impairment under the influence of marijuana.

Justin Uebinger, Owner/President of Advanced HSE Consulting, LLC based out of Lafayette, agrees with the testing difficulties, but is primarily concerned with legalization in heavy industry settings in terms of accident frequency. Uebinger explained, “In most workplace settings, reduced responsiveness [due to marijuana use] could be disastrous to the point of being deadly. For example, what if an employee smokes and then forgets to apply a lockout/tagout device as part of a control of hazardous energy process? Or an employee working at heights who simply forgets to tie-off their lanyard? The potential catastrophic scenarios are endless.”

As for the details of actual impairment, pro-marijuana research group Marijuana Policy Project (MPP) published a document addressing common questions about marijuana and DUI laws. Their effort comes in response to concerns that Washington state’s per se DUI threshold of five nanograms THC per milliliter of blood is arbitrary and inadequate for practical use. MPP states, “heavy marijuana users’ blood can contain detectable amounts of THC even after periods of abstention. In one controlled study, six of 25 participants tested positive for active levels of THC after a full seven days of abstention, with the highest concentration detected being three ng/ml of whole blood. In addition, the blood serum of heavy to moderate users may contain more than two ng/mL of THC at 24 or even 48 hours after smoking a single joint, a level that studies have shown does not produce impairment.” Colorado, the other U.S. state in which recreational marijuana is legal, does not have a per se blood concentration limit, but state leadership has recently sought to rein in the proliferation of marijuana products, particularly edibles, citing a danger to children.

On the opposite side of the marijuana political spectrum, the National Highway Traffic Safety Administration, a federal bureau, also indicates concern about test accuracy in its marijuana fact sheet which notes: “It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects. Concentrations of parent drug and metabolite are very dependent on pattern of use as well as dose.”

Additionally, the NHTSA weighs in on state policy in their stance, stating that: “It is inadvisable to try and predict effects based on blood THC concentrations alone, and currently impossible to predict specific effects based on THC-COOH concentrations. Detection of total THC metabolites in urine, primarily THC-COOH-glucuronide, only indicates prior THC exposure. Detection time is well past the window of intoxication and impairment.” The NHTSA also indicates that clinical studies evaluating urine tests are extremely flawed, due to the fact that “these data are generally reflective of occasional marijuana use rather than heavy, chronic marijuana exposure.”

According to Hubachek, the muddled testing procedures bear out in real cases. He recalls several instances in which marijuana was specifically at issue, and the claimant’s insistence that he or she was not impaired pitched one’s party’s word against another. “If [marijuana] were legal the real burden would be on employers…they’d have to do more drug testing in both post-accident and general settings [to make their case]…I’ve taken depositions where the medical expert couldn’t pinpoint the level of impairment of a claimant who tested positive for marijuana.”

Further, Uebinger predicts the potential for a harmful work environment for employees without a marijuana prescription. He explained, “the team atmosphere, necessary to enforce safety protocol on a job site, could be affected if an employee becomes frequently absent and disengaged while under the influence of either prescribed or recreational marijuana.”

For all states considering medical or recreational marijuana legalization such inconsistencies of testing methods create an additional challenge for policymakers and employers, as well as legal complications.

Under the present Louisiana leadership, marijuana remains illegal and classified as a Schedule I drug under federal law, though the Department of Justice has stated that it will not pursue states that develop their own legalization protocol. The medicinal benefits of marijuana are long established and have proven useful to treat everything from anorexia to chemotherapy side effects and muscle spasms. However, workers’ comp carriers and employers would have to enact significant policy change if legalization of any substantive kind were to occur in Louisiana without accurate tests to back up the new legislation.

Image Credits: KQED News and the New York Times (January 5th, 2014)

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