Pubdate: Wed, 23 Nov 2016
Source: New York Times (NY)
Copyright: 2016 The New York Times Company
Author: Barry Meier


Early this year, a disabled former automobile body worker named Greg
Vialpando explained to lawmakers in New Mexico how medical marijuana
helped his chronic back pain.

State legislators were considering a bill backed by workers'
compensation insurers that would have exempted them from paying for
medical marijuana. But Mr. Vialpando and another patient described how
smoking the drug let them escape years of stupor caused by powerful
prescription narcotic drugs known as opioids.

The lawmakers ended up dropping the bill, and Mr. Vialpando's expenses
for buying marijuana are covered by insurance.

"I would recommend that people use medical marijuana over opioids any
day," Mr. Vialpando, 58, said in a telephone interview.

For businesses and insurers, a string of ballot victories this month
for marijuana advocates are adding to an intensifying conundrum about
the drug and issues such as insurance coverage, employee drug testing
and workplace safety.

Voters in California, Massachusetts, Maine and Nevada approved
initiatives legalizing the recreational use of marijuana, while voters
in Arkansas, Florida, Montana and North Dakota passed proposals for
its medical use. In total, 28 states now permit or will soon permit
medical use of marijuana while eight states have approved recreational

"We are entering this conflict between a social policy decision and a
workplace that is highly regulated," said Alex Swedlow, the chief
executive of the California Workers' Compensation Institute, a
research organization.

A major part of the predicament centers on unclear science about the
benefits of marijuana or the dozens of compounds, known as
cannabinoids, that are found in the plant.

For its part, the Food and Drug Administration has approved only a
synthetic version of a cannabinoid and a similar drug for narrow uses,
such as to treat nausea in chemotherapy patients or to stimulate the
appetites of patients with AIDS. Typically, health insurers will pay
for marijuana-related drugs only for F.D.A.-approved uses.

But state medical marijuana laws usually give doctors permission to
recommend marijuana to a patient with a "debilitating" condition, a
phrase that can encompass problems including glaucoma, cancer and
chronic pain.

Usually, patients pay for the drug themselves and several states have
explicitly exempted workplace compensation insurers for covering such

But as a result of recent state court rulings in New Mexico, workplace
insurers there are required to pay for marijuana-based treatments if
they are recommended by a doctor. And lower courts in Connecticut,
Maine, Massachusetts and Michigan have issued rulings directing
workplace insurers to do so.

The number of patients receiving such coverage is small. And because
marijuana is illegal under federal law, insurers paying for the drug
must use a financial workaround to avoid violations. One strategy is
to reimburse patients for their costs rather than make a direct
payment to a marijuana dispensary.

"The legality of this has not been tested in court," said Ellen Sims
Langille, the general counsel of the California Workers' Compensation

State marijuana laws vary. But broadly speaking, in states that have
legalized marijuana for recreational use, it is not a crime for
residents to possess small quantities of the drug and it is legal for
licensed dispensaries to sell it. Patients approved to use the drug
and dispensaries enjoy similar protections in states with medical
marijuana laws.

However, all states have retained laws that protect the right of
employers to have a drug-free workplace. An employer can withdraw a
job offer to a candidate who tests positive for marijuana on a
pre-employment drug screening or fire an employee who tests positive.

But several states with medical marijuana laws contain provisions that
bar an employer from making an adverse employment-related decision in
cases where an employee approved to use the drug shows evidence of it
on a screening test, said Barry Sample, a senior executive at Quest
Diagnostics, one of the largest drug-testing companies in the United

Those same protections extend to a person who qualifies as a patient's

"Somebody can't be fired for testing positive" in such states, said
Mr. Sample, who is the director of science and technology for the
employer solutions unit of Quest.

Despite the push toward legalization, few employers have dropped
marijuana from the list of drugs for which employees are tested,
compounds that typically include opioids, amphetamines and cocaine,
Mr. Sample said. One exception is a hotel operator in Colorado, a
state where recreational use of marijuana has been legal for several
years, he added.

"They were having problems finding people," Mr. Sample

As marijuana legalization expands, there are also concerns about its
effect on workplace safety. Some studies suggest that marijuana use
can impair a person's judgment, though little data exists to compare
the effect with that of other drugs like opioids.

In states where recreational use is allowed, the problem for employers
becomes one of determining when an employee used marijuana, because
detectable levels of it remain in the body for days afterward.

As a result, employers must use more subjective observations to judge
whether an employee has become impaired from using marijuana while at
work, said Ethan Nadelmann, the executive director of the Drug Policy
Alliance, a group that supports legalization.

As for Mr. Vialpando, the disabled worker in Santa Fe, he and his wife
say they have all the evidence they need that medical marijuana works.

Mr. Vialpando said that during the decade he used opioids, he withdrew
from his family and friends, preferring to spend time by himself,
watching television. He lost interest in food and developed sleep
apnea - his wife used to wake up terrified at night because it
appeared that he was dying.

These days, he smokes about four marijuana cigarettes daily. He said
he had gained weight, enjoyed talking again and had resumed working on
hobbies at home. His wife, Margaret, said that she hoped
President-elect Donald J. Trump, when he takes office, will make
marijuana a legal drug by changing how it is regulated.

"I feel like I've gotten my husband back," she said. "His personality
has come back to the person that he used to be."
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MAP posted-by: Matt