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5 Trends for Employers to Watch in 2018

Advanced planning and preparation, strategic global thinking, shifts in legislative landscapes and sound technology investments are on the minds of most industry leaders as we move into 2018. As an extension of its own thought leadership program, Sedgwick has identified key trends that are likely to affect risk management and benefit decisions in the coming year.

To stay on top of issues that may affect our clients and industry partners throughout the year, we took a close look at internal research and colleague observations, external exploration and employer discussions and in-depth market monitoring of current and emerging risks. We will continue to watch and offer our projections on these potentially defining movements, classified into five categories:

  • Compounding global risks
  • Shifting tide of policy
  • Bridging the gaps
  • Leveraging interdisciplinary care
  • Improving experience through technology

Compounding global risks. An unusually high number of natural disasters in 2017 underscored the need for organizations to have a strong disaster recovery plan in place. Establishing strategic partnerships that can support an effective business continuity plan is critical. Preparation and action must occur before, during and after a catastrophe if an organization is going to recover and resume operations in a timely manner.

Additionally, the continuing threat and prevalence of emerging risks are expected to push the boundaries of organizational resources and resiliency. Cyber threats like data intrusion and ransomware are evolving and multiplying as the global economy becomes increasingly connected. As we continue to see terrorism, both international and domestic, in the headlines, it underscores the need to prepare and protect our people and property.

During these turbulent times, society’s reliance on first responders as a line of defense against risks of all types becomes even more critical. Caring for first responders’ overall physical and mental health is one way communities and businesses can increase preparedness for debilitating crises. Several states have taken up legislation aimed at increasing coverage for first responders. Organizations can anticipate that, as coverage grows, so will the need for specialized claims, managed care and disability services.

See also: Industry Trends for 2017  

Shifting tide of policy. Businesses can look for leave programs to expand in response to demand from their own employee populations, faced with the need to care for their own health and the welfare of their families. Parental leave, caregiver leave and other paid leave programs are on the rise; several states have already introduced new family-friendly paid leave bills, and others are clarifying and expanding regulations for leave benefits. This trend is expected to continue as the population shifts.

More than ever, vigilance is needed for employers to maintain compliance with continuing changes in the Americans with Disabilities Act, Family and Medical Leave Act and other connected federal, state and municipal laws. Throughout 2018, organizations can expect regulatory complexity to increase and fines and litigation to be a looming threat for non-compliance. Many organizations are facing policy changes and compliance demands with a renewed willingness to collaborate across disability, leave of absence and workers’ compensation teams.

It is impossible for organizations not to feel the impact of the prescription drug crisis on their workforces. The costs – personally and financially – of the misuse and abuse of opioids place undue burdens on society. Governmental agencies, pharmacy retailers and employers continue to look for ways to take back control through such means as legislation, drug formularies and first-fill limitations.

Bridging the gaps. Throughout 2018, organizations will seek new ways to bridge gaps in knowledge and services based on evolving needs and preferences of consumers. Organizations are joining in the race toward on-demand, self-service innovation to provide immediate resources to those in need. The infusion of machine learning and artificial intelligence is advancing many capabilities by automatically sifting through mountains of data, allowing service providers to detect patterns faster and formulate valuable insights to improve the quality of the customer experience.

Organizations are also seeking new ways to bridge diversity gaps. Different generations and populations have different needs when considering health concerns, technology, communication preferences and resources. We must address changing demographics within the workforce and determine how to better adapt practices to accommodate and support differences.

Focusing on the claims industry specifically, insurance carriers, third party administrators and self-administered employers must broaden the knowledge and capabilities of today’s claims professional. As seasoned professionals begin to retire, bridging the talent gap becomes increasingly important. Training of claims professionals must expand beyond the traditional claims process. Claims organizations must look holistically at how examiners are addressing the needs of their clients and consumers and how their part in the process affects the bigger picture.

Leveraging interdisciplinary care. The movement toward a whole health approach increases trust and engagement and places less influence on individual providers in favor of a more holistic, consensus view of treatments and interventions. As more employers embrace principles of advocacy, empathy and responsiveness, they are using centralized support to link teams and resources with a common focus on quality care. With this shift, organizations look forward to continued improvement in the consumer experience and stronger physical, emotional and financial health for employees.

We are seeing more businesses embrace integrated programs as a means to address the shared challenges of healthcare, return to work and compliance. In addition, the importance of data connectivity within organizations and across providers will grow as organizations work to avoid information gaps, optimize care and avoid potential dangers.

Interdisciplinary cooperation is also important as a means for exploring alternatives for pain management. Organizations can anticipate more collaboration between employers, physicians, claims specialists and patients as they move away from long-term drug prescriptions, looking instead toward alternative therapies and weaning techniques to help injured workers regain their health and productivity without the risk of addiction.

See also: 3 Technology Trends Worth Watching  

Improving experience through technology. Technology helps employers engage workers throughout their recovery, maintaining a stronger connection while they are away from work and making the process easier for them to understand. Better communication and improved access to on-demand care can help improve the claims experience, and increased consumer satisfaction is leading to accelerated outcomes and better overall health.

Telemedicine and other remote access offerings are still on the rise and evolving as other “tele” services are added to the mix. Eliminating some of the barriers of distance and time, these resources are connecting patients with the right providers for initial and follow-up treatments for minor injuries and illnesses, as well as support resources throughout the claims process. Chatbots and avatars are becoming more prevalent as support and service options for all lines of business. The industry is even seeing potential for these tools as virtual health coaches for workers’ compensation, disability and wellness programs.

Employers can also expect to see the claims industry reach the next level of decision optimization and use technology to deploy intervention strategies in real time. Analytics will influence next-generation methods for addressing all types of claims and be used to predict those that will become complex or incur large liability losses, anticipating care and pharmacy needs, prescribing appropriate steps toward resolution and facilitating return to work.

While the year ahead may bring challenges, it also brings a renewed sense of hope and excitement. As these and other trends materialize and develop, those who have anticipated and planned ahead will be in a position to capitalize on opportunities as they arise. Sedgwick will continue to guide our clients and the broader industry by tracking topics and trends like these that may affect employees, customers and businesses.

To read more, visit Sedgwick’s Navigating 2018 webpage.

Impact on Mental Health in Work Comp

According to the World Health Organization, mental health is described as: “a state of well-being in which every individual realizes his or her own potential, can cope with the normal stress of life, can work productively and fruitfully and is able to make a contribution to his or her community.” But the World Health Organization’s definition applies only to part of the population.

At any given time, one in five American adults suffers with a mental health condition that affects their daily lives. Stress, anxiety and depression are among the most prevalent for injured workers. Left untreated, they can render a seemingly straightforward claim nearly unmanageable, resulting in poor outcomes and exorbitant costs.

Increasingly, many in our industry are recognizing the need to do all we can to address this critical issue. We must openly discuss and gain a deep understanding of a subject that, until now, has been taboo.

Four prominent workers’ compensation experts helped us advance the conversation on mental health in the workers’ compensation system during a recent webinar. They were:

  • Bryon Bass, Senior Vice President for Disability, Absence and Compliance at Sedgwick
  • Denise Zoe Algire, Director of Managed Care and Disability for Albertsons Companies
  • Maggie Alvarez-Miller, Director of Business and Product Development at Aptus Risk Solutions
  • Brian Downs, Vice President of Quality and Provider Relations at the Workers’ Compensation Trust

Why It Matters

Mental health conditions are the most expensive health challenges in the nation, behind cancer and heart disease. They are the leading cause of disabilities in high-income countries, accounting for one third of new disability claims in Western countries. These claims are growing 10% annually.

In addition to the direct costs to employers are indirect expenses, such as lost productivity, absenteeism and presenteeism. Combined with substance abuse, mental health disorders cost employers between $80 billion and $100 billion in these indirect costs.

In the workers’ compensation system, mental health conditions have a significant impact on claim duration. As we heard from our speakers, these workers typically have poor coping skills and rely on treating physicians to help them find the pain generator, leading to overuse of treatments and medications.

See also: Top 10 Ways to Nurture Mental Health 

More than 50% of injured workers experience clinically related depressive symptoms at some point, especially during the first month after the injury. In addition to the injured worker himself, family members are three times more likely to be hospitalized three months after the person’s injury. Many speculate that the distraction of a family member leads the injured worker to engage in unsafe behaviors.

Mental health problems can affect any employee at any time, and the reasons they develop are varied. Genetics, adverse childhood experiences and environmental stimuli may be the cause.

The stress of having an occupational injury can be a trigger for anxiety or depression. These issues can develop unexpectedly and typically result in a creeping catastrophic claim.

One of our speakers relayed the story of a claim that seemed on track for an easy resolution, only to go off the rails a year after the injury. The injured worker in this case was a counselor who had lost an eye after being stabbed with a pen by a client. Despite his physical recovery, the injured worker began to struggle emotionally when he finally realized that for the rest of his life he would be blind in one eye. Because his mental health concerns were raised one year after the injury, there were some questions about whether he might be trying to game the system.

Such stories are more commonplace than many realize. They point out the importance of staying in constant contact with the injured worker to detect risk factors for mental health challenges.

Challenges

Mental health conditions — also called biopsychosocial or behavioral health — often surprise the person himself. Depression can develop over time, and the person is not clued in until he finds himself struggling. As one speaker explained, the once clear and distinct lines of coping, confidence and perspective start to become blurred.

In a workers’ compensation claim, it can become the elephant in the room that nobody wants to touch, talk about or address. Organizations willing to look at and address these issues can see quicker recoveries. But there are several obstacles to be overcome.

Stigma is one of the biggest challenges. People who realize they have a problem are often hesitant to come forward, fearing negative reactions from their co-workers and others.

Depictions of people suffering from behavioral health issues in mass media are often negative, but are believed by the general public. Many people incorrectly think mental health conditions render a person incompetent and dangerous; that all such conditions are alike and severe; and that treatment causes more harm than good.

As we learned in the webinar, treatment does work, and many people with mental health conditions do recover and lead healthy, productive lives. Avoiding the use of negative words or actions can help erase the stigma.

Cultural differences also affect the ability to identify and address mental health challenges. The perception of pain varies among cultures, for example. In the Hispanic community, the culture mandates being stoic and often avoiding medications that could help.

Perceptions of medical providers or employers as authority figures can deter recovery. Family dynamics can play a role, as some cultures rely on all family members to participate when an injured worker is recovering. Claims professionals and nurses need training to understand the cultural issues that may be at play in a claim, so they do not miss the opportunity to help the injured worker.

Another hurdle to addressing psychosocial issues in the workers’ compensation system is the focus on compliance, regulations and legal management. We are concerned about timelines and documentation, sometimes to the extent that we don’t think about potential mental health challenges, even when there is clearly a non-medical problem.

Claims professionals are taught to get each claim to resolution as quickly and easily as possible. Medical providers — especially specialists — are accustomed to working from tests and images within their own worlds, not on feelings and emotional well-being. Mental health issues, when they are present, do not jump off the page. It takes understanding and processes, which have not been the norm in the industry.

Another challenge is that the number of behavioral health specialists in the country is low, especially in the workers’ compensation system. Projections suggest that the demand will exceed the supply of such providers in the next decade. Our speakers explained that, with time and commitment, organizations can persuade these specialists to become involved.

Jurisdictions vary in terms of how or whether they allow mental health-related claims to be covered by workers’ compensation. Some states allow for physical/mental claims, where the injury is said to cause a mental health condition — such as depression.

Less common are mental/physical claims, where a mental stimulus leads to an injury. An example is workplace stress related to a heart attack.

See also: New Approach to Mental Health  

“Mental/mental claims” mean a mental stimulus causes a mental injury. Even among states that allow for these claims, there is wide variation. The decision typically hinges on whether an “unusual and extraordinary” incident occurred that resulted in a mental disability. A number of states have or are considering coverage for post-traumatic stress among first responders. The issue is controversial, as some argue that the nature of the job is, itself, unusual and extraordinary and that these workers should not be given benefits. Others say extreme situations, such as a school shooting, are unusual enough to warrant coverage.

What Can Employers Do

Despite the challenges, there are actions employers and payers are successfully taking to identify and address psychosocial conditions.

For example, Albertsons has a pilot program to identify and intervene with injured workers at risk of mental health issues that is showing promise. The workers are told about a voluntary, confidential pain screening questionnaire. Those who score high (i.e., are more at risk for delayed recoveries) are asked to participate in a cognitive behavioral health coaching program.

A team approach is used, with the claims examiner, nurse, treating physician and treating psychologist involved. The focus is on recovery and skill acquisition. A letter and packet of information is given to the treating physician by a nurse who educates the physician about the program. The physician is then asked to refer the injured worker to the program, to reduce suspicion and demonstrate the physician’s support.

Training and educating claims professionals is a tactic some organizations are taking to better address psychosocial issues among injured workers. The Connecticut-based Workers’ Compensation Trust also holds educational sessions for its staff with nationally known experts as speakers. Articles and newsletters are sent to members to solicit their help in identifying at-risk injured workers.

Continuing communication injured workers is vital. Asking how they are doing, whether they have spoken to their employer, when they see themselves returning to work reveal underlying psychosocial issues. Nurse case managers can also be a great source of information and intervention with at-risk injured workers.

Changing the workplace culture is something many employers and other organizations can do. Our environments highly influence our mental health. With the increased stress to be more productive and do more with less, it is important for employers to make their workplaces as stress free as possible.

Providing the resources to allow employees to do their jobs and feel valued within the organization helps create a sense of control, empowerment and belonging. Helping workers balance their work loads and lives also creates a more supportive environment, as does providing a safe and appealing work space. And being willing to openly discuss and provide support for those with mental health conditions can ensure workers get the treatment they need as soon as possible.

As one speaker said, “By offering support from the employer, we can reduce the duration and severity of mental health issues and enhance recovery. Realize employees with good mental health will perform better.”

To listen to the full webinar on this topic, click here.

It’s Time to Act on SSDI Trust Fund

The new Congress and the Trump administration need to act soon if they want to address the projected 2023 exhaustion of the Social Security Disability Insurance (SSDI) trust fund and protect hard-working Americans. Every year, millions of Americans lose their jobs due to injuries or illnesses, but policymakers can take concrete steps to maintain these workers’ incomes and reduce spending for their SSDI, Medicare and other public benefits.

The first and most critical step is to empower states and the private sector to test promising approaches for helping ill or injured workers stay in the labor force. Otherwise, policymakers will be faced with either cutting disability benefits for workers who need them or diverting revenue from the trust fund that is intended to pay for the same workers’ retirement benefits. Policymakers chose the latter course in 2015, when the SSDI trust fund was projected to dry up within a year. But that option will be even less attractive in 2023 because the retirement trust fund is on a trajectory for exhaustion in 2035.

The nature of the opportunity

Research shows that a large but unknown portion of the more than two million workers who leave their jobs each year for medical reasons could continue to work if they received timely, evidence-based support. Yet many workers with work-threatening conditions fall through the cracks in a fragmented support system and enter SSDI instead.

See also: What Trump Means for Health System  

The private sector already has the tools to help more of these workers stay in the labor force, but the tools aren’t targeted to those most likely to enter SSDI—those in relatively low-skill jobs with limited education. Many employers of skilled workers provide job retention services along with short-term disability and health insurance. Workers’ compensation is available to most workers if their injury or illness is due to work, but the degree to which they receive job-retention services varies. Some states’ vocational rehabilitation agencies also provide job retention services, but their size and scope is very limited.

The fact that some job-retention services are already available reflects the substantial benefits of these services to workers, employers and state governments. It is clear, however, that the provision of services is suboptimal because of misaligned financial incentives and institutional constraints. Most notably, financial incentives created by federal programs work against job retention rather than for it: Federal support for ill or injured workers is almost entirely reserved for those who leave the labor force and enter SSDI. After a further 24 months, SSDI entrants also enter Medicare, and many with sufficiently low incomes receive Supplemental Security Income, Medicaid and various in-kind benefits. Furthermore, there is a sharp drop in the federal taxes collected from workers who stop working and enter SSDI.

Keeping these workers on the job and out of SSDI could save the federal government billions. The potential gains of investing in job retention far exceed the costs—which is why policymakers now have the chance to help hard-working Americans as well as reduce the size of the federal deficit.

The need for immediate action

To build on what we’ve learned thus far, federal policymakers must provide states and the private sector with opportunities to test various ways to help Americans whose livelihoods are threatened by medical conditions. Implementing a new policy based on our current limited knowledge could harm, rather than help, many workers, or it could result in new costs to federal and state governments that exceed the savings to public programs. For instance, policies that excessively push workers to pursue work when they are in dire need of SSDI and Medicare would harm their well-being. Likewise, policies that spend significant resources on services and supports that do not at least pay for themselves through reductions in program expenditures will increase government spending.

Instead, policymakers should plan to scale up, replicate and improve test systems that work and stop supporting those that do not. Over the past few years, we and others have identified many opportunities to test such systems. For example, the three states with public short-term disability insurance programs—California, New Jersey and Rhode Island—could pilot-test case coordination and behavioral interventions to help their claimants stay at work. Other states could test similar approaches for their own employees, and accountable care organizations could test the use of job retention as a quality metric. (On Feb. 23, Mathematica Policy Research’s Center for Studying Disability Policy is hosting a live webinar, “The Promise of State Initiatives to Prevent Long-Term Disability,” to discuss these and other state-level initiatives that can help workers keep their economic independence and save billions of taxpayer dollars.)

See also: A Closer Look at the Future of Insurance

Such tests are not likely to occur, however, unless federal policymakers lead the way. They could do that by (1) making the testing of promising systems a national priority, (2) establishing an interagency office to lead the effort, (3) providing modest funding to gain the participation of states and the private sector and (4) supporting learning via rigorous evaluation.

Rarely do policymakers have an opportunity to both help American workers and reduce entitlement expenditures. Such an opportunity presents itself today, but the window is closing on our chance to address these issues and preserve the SSDI trust fund.

Opioids: A Stumbling Block to WC Outcomes

On a weekly if not daily basis, there are media reports about the growing impacts of addiction to opioids. The Centers for Disease Control and Prevention (CDC) reports that 78 people a day are dying from the effects of opioid overdose. Families are being systematically destroyed by the multiplicity of effects of this increasingly pervasive problem. In 2014, there were more than 47,000 drug overdose deaths in the U.S., and more than 28,000 of those deaths were caused by opioids (including heroin). The current overdose epidemic is unfortunately only one symptom of a greater problem in the U.S. Our nation consumes 80% of all opioids produced in the world, yet the American population makes up only 5% of the total world population. This strongly implies there is a societal, cultural profile in America that is unlike anywhere in the world, driving such demand and overuse.

As the national “epidemic” of opioid abuse continues to get increasing attention, it’s important to realize the effect it has on employers. Prescription opioid abuse alone cost employers more than $25 billion in 2007. Even if the injured worker never develops an opioid misuse disorder, long-term opioid use is still extremely problematic. The evidence tells us that the effectiveness of chronic opioid therapy to address pain is modest and that effect on function is minimal. In addition, when injured workers are prescribed opioids long-term, the length of the claim increases dramatically and even more so when other addictive medications like benzodiazepines (alprazolam, lorazepam) are prescribed. Perhaps the most troubling statistic of all: 60% of injured workers on opioids 90 days post-injury will still be on opioids at five years.

See also: Potential Key to Tackling Opioid Issues

Workers’ compensation stakeholders are increasing efforts to call more attention to the use of these potent pain-relieving drugs by injured workers. In the highly complex and diverse field of workers’ compensation, entities from state governments to insurers and other workers’ compensation stakeholders are stepping up to address the issues and impacts of opioid use by injured workers in varying degrees through a myriad of methods.

Most work-related injuries involve the musculoskeletal system, and doctors increasingly prescribe short- and long-term opioids to address even minor to modest pain despite broad medical recommendations against long-term use. Because of the prevalence of back injuries in the workplace, opioids are increasingly becoming the treatment of choice for what often starts as a short-term treatment, but frequently becomes long-term, with the likelihood of addiction occurring before treatment is completed.

Claims professionals should understand that there are many variations of opioids, including fentanyl; morphine; codeine; hydrocodone (Vicodin, Lortab); methadone; oxycodone, (Percocet, OxyContin); hydromorphone (Dilaudid) – each with different levels of potency. For example, fentanyl is 50 to 100 times more potent than heroin. No wonder addiction is so often the result.

Paul Peak, PharmD, assistant vice president of clinical pharmacy at Sedgwick, notes that opioids act on receptors in the brain; therefore, it’s expected that certain changes will occur over time as use continues. Each one of us would realize both opioid dependence (this means withdrawal symptoms occur when the drug is stopped) and opioid tolerance (this means more drug is needed to get the same effect as use continues) if we were to take opioids consistently for weeks or months. In many cases, patients who are prescribed opioids chronically will experience a worsening of pain that is actually caused by the opioids themselves.

Because opioids have these profound effects on our brains, engaging injured workers in their own recovery is a best-claim practice, and it is critical to achieving the best outcomes. This should begin early, and a key part of the process includes encouraging workers to ask their doctors questions when they are being treated with drugs for pain. Some of these questions should include:

  • Is this prescription for pain medicine an opioid?

Doctors should educate patients on what an opioid is and how to use it safely to relieve pain.

  • What are some of the potential adverse effects of opioids?

Opioids can affect breathing and should be used with great caution in patients with respiratory issues. They most often cause moderate to severe constipation. Even short-term use can decrease sleep quality and impair one’s ability while driving.

  • Where can I safely dispose of remaining pills?

To protect others from potential misuse, any excess supply should not be saved for later use. Injured workers should be advised not to give them to friends or family, and to dispose of unused pills appropriately. States often provide disposal options/locations for opioids to reduce the chance of leftovers getting into the hands of unintended users. In addition, CDC guidelines now recommend patients are only given a three-day or seven-day supply of opioids, and some states are now putting laws in place following this recommendation.

  • Am I at risk for abuse?

Providers can use risk assessments to help determine those people at greatest risk for abusing opioids if prescribed. Peak notes that opioids do have some benefit in the acute phase post-injury, say within four to six weeks after injury. However, when improvement doesn’t occur in this time frame, continuing use of opioids is not appropriate, as addiction becomes increasingly assured.

These are among the key questions for treating physicians that injured workers should ask. While engagement is a vital part of patient accountability, physician education is even more critical. Peak explains that more is expected of doctors because they are providing the care. Patients and physicians working together in a close relationship is key.

Injured workers and family members should talk to the treating physician immediately if they see signs of addiction or dependence. There are some possible warning signs of addiction, such as craving the pain pills without pain or when pain is less severe, requesting early refills or stockpiling medication, taking more pills at one time or taking them more often than prescribed, or going to multiple prescribers for opioids or other controlled substances. Early detection can help stop the destructive cycle of addiction before it becomes too powerful to resist. Injured workers can also contact an addiction counseling organization.

A note of caution for all whose accountabilities touch this area of treatment – terminating prescription opioids “cold turkey” can be dangerous and even fatal. Throughout the life of the claim and at the end of the day for injured workers using opioids, the relationship with their doctors will be the primary factor in determining how the treatment will end and the outcome that is achieved.

Strategies for the claims team

So where does all this leave claims professionals who want to see injured workers recover successfully and appropriately from their workplace injuries?

See also: Opioids Are the Opiates of the Masses  

Claims professionals must define a strategy for identifying and then monitoring physician prescribing patterns and the specific use patterns in each case. Some of the tactics that should be considered include:

  • Leveraging pharmacy utilization review services
  • Directing patients to doctors who won’t overprescribe opioids; and those who use prescription drug monitoring programs and tools, which are available in most states
  • Engaging nurse case managers early and regularly; their involvement and intervention can help deter addiction; nurses can advocate for other more clinically appropriate options and advocate for best practices including risk assessments, opioid contracts, pill counts and random drug screens
  • Ensuring that injured workers are getting prescriptions through pharmacy benefit management networks
  • Leveraging fraud and investigative resources that are often useful in uncovering underlying, unrelated patterns of behavior that would indicate a propensity for opioid abuse
  • Considering the cost of opioids versus alternatives; while many alternate treatments are more expensive on the front end, certain drugs may be much more expensive in the long term, especially if they lead to addiction
  • Addressing the opioid issue well before case settlement; as with most longer-term open claims scenarios, those with opioid use will only produce worse outcomes and get more expensive over time without appropriate early interventions

Continued vigilance by claims professionals can enable and facilitate a better result at closure and avoid a lot of potential pain for the injured worker along the recovery path.

In the Weeds on Marijuana and WC

It’s a topic that gets much buzz – how will the cloud of legislation surrounding recreational and medical marijuana use affect businesses, specifically when it comes to compensability for workers’ compensation? I am sure you have all caught up on news about additional states voting to legalize marijuana for medical use and adult recreational use during the November 2016 election. Let’s take a look at those changes, as well as what action they may prompt to shake up the state and federal status quo.

After receiving certified results of a state recount, 2016 closed with Maine Gov. Paul LePage issuing a proclamation of the Referendum Question 1 vote that allows recreational use of marijuana by those at least 21 years of age. Maine joins Alaska, California, Colorado, Massachusetts, Nevada, Oregon, Washington and the District of Columbia in voting to legalize marijuana for adult recreational use. Arizona was the only state where voters rejected a legalization measure during the November election.

With the passage of ballot initiatives in Arkansas, Florida and North Dakota, medical marijuana is now legal in 28 states and the District of Columbia, Guam and Puerto Rico.

An additional 17 states have laws that only allow the use of “low THC, high cannabidiol (CBD)” products for specified medical conditions. The National Conference of State Legislatures provides a summary of those state laws here.

Stickiness in the states

Despite the increase in the number of states that have legalized the medicinal use of marijuana, the impact on workers’ compensation claims was limited until about three years ago.

In 2014, New Mexico became the first state to have a state appellate court order a workers’ compensation insurance carrier to provide reimbursement to an injured worker for medical marijuana. The New Mexico Workers’ Compensation Administration began requiring employers and insurers to reimburse injured workers when the state’s healthcare provider fee schedule took effect Jan. 1, 2016. The trend continues.

In two recent decisions, the Appellate Division of the Maine Workers’ Compensation Board affirmed two different administrative law judge (ALJ) awards reimbursing workers for their medical marijuana expenses, Bourgoin v. Twin Rivers Paper Co. and Noll v. Lepage Bakeries.

See also: Marijuana and Workers’ Comp  

On Dec. 15, 2016, an administrative law judge in New Jersey issued an order in Watson v. 84 Lumber requiring reimbursement of an injured worker for medical marijuana payment. It should be noted that this is a division level case, so this decision is not binding on other New Jersey courts. The case is not being appealed.

It is noteworthy that in each of the above cases:

  • Marijuana was recommended by physicians only after other treatment regimens for chronic pain were attempted without success, and
  • These judges were not persuaded by the fact that marijuana remains illegal under federal law.

Federal haze

While there has been some activity on the federal side over the past year, it has not changed the fact that marijuana, even for medicinal use, violates federal law.

Marijuana remains illegal under federal law because it is listed under Schedule I in the Controlled Substances Act (CSA), along with other drugs such as heroin. Schedule I substances are illegal to distribute, prescribe, purchase or use outside of medical research due to “a high potential for abuse” and “no currently accepted medical use in treatment in the U.S.” As a result of this status, physicians recommend the use of marijuana instead of prescribing it.

On July 19, 2016, the Drug Enforcement Administration (DEA) denied two petitions to reclassify marijuana, concluding that it continues to meet the criteria for control under Schedule I because:

  • Marijuana has a high potential for abuse. This is based on the Department of Health and Human Services (HHS) evaluation and additional data gathered by DEA.
  • Marijuana has no currently accepted medical use in treatment in the U.S. Using an established five-part test, it was determined that marijuana has no “currently accepted medical use” because, as detailed in HHS evaluation, the drug’s chemistry is not known and reproducible; there are no adequate safety studies; there are no adequate and well-controlled studies proving its effectiveness; the drug is not accepted by qualified experts; and the scientific evidence is not widely available.
  • Marijuana lacks accepted safety for use under medical supervision. At present, there are no U.S. Food and Drug Administration (FDA)-approved marijuana products, nor is marijuana under a New Drug Application (NDA) evaluation at the FDA for any indication.

Interestingly, the DEA noted that marijuana could not be placed in a schedule less restrictive than Schedule II in view of U.S. obligations under international drug control treaties.

Although marijuana is not being reclassified at this time, on Aug. 11, 2016 the DEA announced a policy change meant to increase research by expanding the number of DEA-registered facilities allowed to grow and distribute marijuana for FDA-authorized research purposes.

Currently, the U.S. Department of Justice (DOJ) marijuana enforcement policy is to allow states to create their own “strong, state-based enforcement efforts,” but DOJ reserves its right to challenge the states’ legalization laws at any time necessary.

Congress passed the Consolidated Appropriations Act (CAA) of 2016 that in Section 542 restricts federal law enforcement activity in states that allow medical marijuana cultivation, distribution and use. Now that voters in half of the states have voted for legalization of medical marijuana, will Congress take action to change its scheduling?

The new administration may change the broad leeway states have been given to regulate marijuana usage and sales.

  • President Trump has expressed varying views regarding medical and recreational marijuana over the years.
  • Attorney General nominee Sen. Jeff Sessions, a former federal prosecutor, has expressed opposition to medical and recreational marijuana.
  • Tom Price, a physician and nominee for Health and Human Services Secretary, has also been a vocal opponent of legalization.

If the conflict between federal and state law is not resolved politically, the U.S. Supreme Court may have the last word. The high court last weighed in on marijuana in 2005. In an unsigned opinion issued March 2016, the high court refused to hear a request from Nebraska and Oklahoma to declare Colorado’s legalization of marijuana unconstitutional because it is against federal law and therefore violates the Constitution’s supremacy clause, which states federal law trumps state laws. Justices Alito and Thomas dissented. Will President Trump’s nominee to the U.S. Supreme Court make a difference?

See also: How to Think About Marijuana and Work  

Yes, the future of federal marijuana policy and enforcement remains hazy. What is clear is that employers contending with this complex and rapidly changing issue must understand the laws and relevant legal decisions pertaining to marijuana in each of the states where their business operates.

In such an uncertain time, we will continue to provide updates and perspective. We recommend seeking legal assistance to develop a sound company policy addressing the use and reimbursement of medical marijuana for on-the-job injuries.