A construction company must cover a former employee’s monthly medical cannabis, which he uses to treat injuries sustained at work nearly two decades ago, the appellate division ruled.
While Vincent Hager was an employee at M&K Construction in 2001 at age 28, a truck on a job site dumped a load of concrete onto him, resulting in chronic pain. Though he worked on light duty thereafter into 2002, his pain eventually caused him to leave his job and have a series of unsuccessful surgeries.
Hager also developed an addiction to the opioids he was prescribed, according to court documents. He was prescribed medical cannabis in 2016, for which his monthly bill is $616.
The appellate court’s ruling affirms an order from a workers’ compensation judge that determined Hager’s medical cannabis bills must be paid for by M&K Construction.
Scarinci Hollenbeck Counsel Dan McKillop, who leads the firm’s cannabis law group, called the decision “a big deal” for a couple of reasons.
“Private employers have to reimburse their employees for their use of medical cannabis when they are approved for participation in the program by their doctors. This is the first such decision in New Jersey,” McKillop said. “Going forward, employers are going to have to understand that this is a bit of a turning of a corner here with respect to the perspective of the courts here. It’s going to have an impact on labor law [and] employer-employee relationships.
“It gives employers another reason to review their internal policies and handbooks and protocols and contracts with their employees on the issue of drug testing and in particular, the medical marijuana program. It’s a further expansion of employees’ and patients’ rights with respect to the medical cannabis program here in New Jersey,” he said.
Going forward, employers are going to have to understand that this is a bit of a turning of a corner here with respect to the perspective of the courts here.
– Dan McKillop, counsel, Scarinci Hollenbeck
McKillop said he believes the courts will see more workers’ compensation cases in this vein, as well as other cases that use this case as persuasive authority.
“I could foresee other employees say ‘I’ve worked 15 years on the line hunched over and I’ve developed osteoarthritis, for example, and now I want my employer to reimburse me for medical marijuana,” he said.
M&K argued that they should be treated as though they were a private insurer, as private insurers aren’t required to cover medical cannabis costs. The court decided against this, as M&K is not a private insurer.
According to court documents, M&K argued that complying with the workers’ compensation court’s order to reimburse Hager for his medical cannabis exposed the company to the threat of federal prosecution. The court determined that M&K presented no evidence that it faces the threat of federal prosecution, and that M&K “could not apprise this court of any federal prosecution against an employer or insurance carrier for its reimbursement of authorized medical marijuana treatment” despite medical cannabis’ legality in more than 30 states.
“For employers, [this case] is another reason they need to do a thorough review of the internal drug policy and examine what it means for their employees and them going forward so they’re not faced with some sort of litigation should something happen,” McKillop said.
Victor Matthews, the Denville attorney who represented Hager, was not available for comment Wednesday afternoon.
Matthew Gitterman, a partner at Biancamano & Di Stefano in Edison who represented M&K Construction, declined to comment on the ruling.