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As marijuana laws evolve, New Mexico rethinks paying comp claims

Posted On: Feb. 11, 2016 12:00 AM CST

New Mexico is moving forward with a bill that would prevent employers from having to pay for medical marijuana under workers compensation claims, which could bring the state in line with recent federal court cases that allow employers to fire workers for marijuana use.

The New Mexico House of Representatives voted 33-29 on Tuesday in favor of H.B. 195, which says that workers comp insurers and employers would not be liable to reimburse injured workers for medical marijuana, according to the New Mexico Legislature website. The bill has been sent to the New Mexico Senate for consideration.

The New Mexico Workers' Compensation Administration began requiring employers and insurers to reimburse injured workers for medical marijuana when the state's health care provider fee schedule took effect Jan. 1. Workers comp claimants can be reimbursed up to $12.02 per gram of marijuana for up to 226.8 grams of marijuana per year, according to the fee schedule.

Such reimbursements were ordered after the New Mexico Court of Appeals had ruled three times since May 2014 that medical marijuana should be classified as reasonable and necessary medical care for injured workers.

If H.B. 195 passes, it could bring New Mexico in line with a recent federal court decision that said employers can fire workers who test positive for marijuana, even if marijuana use is allowed under state law.

The U.S. District Court in Albuquerque, New Mexico, ruled last month that a Tractor Supply Co. facility in Santa Fe, New Mexico, had a right to fire a worker for using medical marijuana after he tested positive for marijuana in a post-offer, pre-employment drug test. The plaintiff in that case, Rojerio Garcia, told Tractor Supply during his initial employment interview, according to court records that he had been diagnosed with HIV/AIDS and that he participates in the New Mexico Medical Cannabis Program to treat symptoms of his condition.

Albert B. Randall Jr., Baltimore-based principal at law firm Franklin & Prokopik P.C., said federal courts have recognized that marijuana continues to be illegal under federal law, even though New Mexico and other states have loosened restrictions on the drug.

“As the judge in the Garcia case in New Mexico said, yes, it may be legal under the state's workers compensation law as a remedy for a workers compensation injury, (but) there's still an inconsistency with federal law being that it's still a Schedule I drug, and it's still illegal,” Mr. Randall said. “Therefore, Tractor Supply, the employer in that case, need not accommodate drug use because it would require Tractor Supply to violate the Federal Controlled Substances Act.”

Alyssa Smilowitz, an attorney with Jackson Lewis P.C. in Melville, New York, said state courts have been supportive of state laws legalizing marijuana for medical or recreational use. That has made it difficult for employers to create workplace drug policies that walk the line between laws or court cases at the state and federal levels, she said.

“There's less certainty for employers when they have either a complaint or an administrative charge at the state level because they would be less able to predict how state courts are going to address the medical marijuana laws,” Ms. Smilowitz said.

Mr. Randall noted that the federal Tractor Supply case mirrors a decision by the Colorado Supreme Court last June.

In Brandon Coats v. Dish Network L.L.C., the Colorado high court found that Englewood, Colorado-based Dish Network had a right to fire a worker for smoking marijuana outside of work, even though the employee was legally registered under Colorado law to use medical marijuana.

Mr. Randall said it's good “to see that the courts are adopting a rather uniform outlook” on marijuana use. But he cautions employers against being too confident, since courts could shift their opinions “as the public policy or the public perception continues to evolve in favor of medical marijuana and even decriminalization of marijuana in general.”