On March 17, 2023, the Commonwealth Court of Pennsylvania issued a decision regarding employee use of medical marijuana in the workers’ compensation context. The decision in Fegley v. Firestone Tire & Rubber (Workers’ Comp. Appeal Bd.) addresses an issue of first impression. The court held that an employer’s failure to reimburse an employee’s out-of-pocket costs for medical marijuana to treat his work-related injury was a violation of the Pennsylvania Workers’ Compensation Act (“WC Act”). The decision is significant for Pennsylvania employers. Given this decision, Pennsylvania employers could be subject to penalties under the WC Act if they do not reimburse employees for medical marijuana use—even though marijuana is illegal under federal law and cannot be prescribed by any doctors.
CASE BACKGROUND
The employee in the underlying case sustained a work-related injury to his back. After decades of taking prescribed opiates and narcotics, the employee began using medical marijuana at the recommendation of his doctor. His pain level improved through use of marijuana, to the point that he was able to wean himself off of the prescription drugs. An entity responsible for evaluating the appropriateness of treatment for work-related injuries under the state workers’ compensation system found that the employee’s medical marijuana use was reasonable and necessary. However, the employer refused to reimburse the employee for the cost of his medical marijuana treatment.
The employee filed a claim seeking penalties for the employer’s alleged violation of the WC Act by failing to pay for the cost of his medical marijuana use. The employer prevailed at the agency level on the grounds that the Pennsylvania Medical Marijuana Act (“MMA”) says that coverage is not required for medical marijuana and requiring an employer to fund marijuana use would violate federal law and did not violate the WC Act. The employee then appealed to the Commonwealth Court of Pennsylvania.
DECISION ON APPEAL
In a 5-2 decision, the Commonwealth Court of Pennsylvania disagreed with the agency ruling below, and thus reversed and remanded. In reaching its decision, the Court analyzed the contours of, and the relationship between, the WC Act, the MMA, and related federal law.
Starting with the basics, the Court observed that the WC Act requires reimbursement to employees for reasonable and necessary medical expenses resulting from work-related injuries. The Court also observed that the MMA deems marijuana to be a legitimate therapy for treatment of medical issues under proper circumstances. And the MMA seeks to protect individuals who use medical marijuana by stating that medical marijuana patients shall not be “denied any right or privilege, . . . solely for lawful use of medical marijuana . . .”
The MMA, however, also has a section entitled “Conflict”, which provides that “[n]othing in [the MMA] shall be construed to require an insurer or a health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana.” This did not end the Court’s inquiry. The Court found that the absence of the word “reimbursement” in this Conflict provision is significant. While a well-reasoned dissenting opinion described “coverage” and “reimbursement” as “two sides of the same coin”, the majority disagreed. The Court held that “coverage” and “reimbursement” have materially distinct definitions. The Court reasoned that the MMA does not require coverage for medical marijuana, but there is no language in the MMA precluding a WC carrier from reimbursing a claimant for medical expenses that are reasonable and necessary to treat a work-related injury. In the Court’s view, employers must therefore reimburse employees for medical marijuana treatment that is reasonable and necessary for work-related injuries. This conclusion, the Court noted, is consistent with the WC Act’s reimbursement requirement, along with the MMA’s endorsement of medical marijuana and corresponding prohibition against the denial of rights or privileges based solely on medical marijuana use.
The Court also addressed the relationship between state and federal law. The MMA contains a provision stating that [n]othing in [the MMA] shall require an employer to commit any act that would put the employer or any person in violation of federal law.” Under federal law, it is unlawful for “any person knowingly or intentionally – [] to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance[.]” 21 U.S.C. § 841(a). The Court did not find this to be a persuasive reason for reaching a different decision because reimbursement is not the same as manufacturing, distribution, or dispensing of marijuana. Thus, reimbursement is not illegal.
In her dissent, Judge Christine Fizzano Cannon discussed the interplay between state and federal law. She wrote that “[a]lthough the MMA legalizes the use of medical marijuana in Pennsylvania, a provider still cannot legally dispense medical marijuana under federal law” because it is illegal. She reasoned that an illegal treatment cannot be reasonable or necessary under the WC Act and, in turn, an employer should not be responsible for reimbursement.
KEY TAKEAWAYS
This decision—unless it is overturned or superseded—has immediate impact on employers in Pennsylvania. Indeed, they are now required to reimburse employees for medical marijuana treatment for work-related injuries under the WC Act. Failure to do so could result in penalties. This holding is consistent with holdings in New Mexico, New Jersey, New Hampshire, New York and Connecticut. However, it is contrary to holdings in Massachusetts, Maine, and Minnesota.
