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Proposed Cannabis Bill A3511 Raises Serious Legal Issues

NJ Workers’ Comp Legislative Update

The New Jersey Assembly recently introduced legislation, A3511, which would force every workers’ compensation, PIP and health insurance carrier writing insurance in New Jersey to provide coverage for medical cannabis. This legislation overreaches into the contractual bargaining between consumers and insurance companies and will no doubt drive premium costs higher.  This legislation appears to be an attempt to codify and expand on the ruling in Hager v. M&K Construction, 246 N.J. 1 (2021).

Readers may recall that a near identical bill (A1708) was passed by the New Jersey Assembly Appropriations Committee on October 26, 2020 while Hager was slated to be heard by the Supreme Court of New Jersey.  Thereafter the Supreme Court in Hager affirmed the Appellate Division decision to require the workers’ compensation carrier to provide medical marijuana as a reasonable and necessary medical treatment under the facts of that particular case.  

If this new bill is passed, employers and their carriers must include coverage for medical use of cannabis, the use and sale of which is currently prohibited under federal law.  The relevant portion of the proposed bill reads, “Notwithstanding the provisions of subsection a. of this section, an employer or workers’ compensation insurance carrier or private passenger automobile insurance carrier shall provide coverage for costs associated with the medical use of cannabis…” 

The bill is puzzling because it presupposes that the use of medical marijuana is a common and historically accepted type of medical treatment when in fact it remains highly controversial.  Many pain medicine doctors still have reservations about using medical marijuana as a safe alternative to other more historical treatment.  Some do not believe that there is sufficient proof that the use of medical marijuana reduces dependency on opiates.  That was an important fact in the Hager case because Mr. Hager testified that marijuana helped him wean off opiates.

Even if this bill should be enacted, defense counsel will still raise the issue in individual cases whether the use of medical marijuana is “reasonable and necessary,” cornerstone language from N.J.S.A. 35:15-15.  Physician discretion in evaluating the reasonableness of medical treatment is crucial given that two injured workers can have the same injury, but one may require different treatment to restore the function of the body.

Enacting a law that requires carriers to include coverage for a controversial medical treatment will not only increase insurance costs for all employers and taxpayers but it will also likely lead to further litigation.

For more information on the progress of this proposed legislation, contact the undersigned at jcottell@capehart.com.

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About the Author

About the Author:

Ms. Cottell focuses her practice in the representation of employers, self-insured companies, and insurance carriers in workers’ compensation defense matters.

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There Are 2 Brilliant Comments

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  1. Cory Didion says:

    Great Article, would there still be a challenge in the Supreme Court due to the fact by providing the medical canabis we are violating Federal Law and therefore is unconstitutional based on the fact the violation of federal law?
    Other States have appealed this law to their Supreme Courts and they found it was unreasonable to provide a substance that is in violation of federal law and the liabilities it creates for insurers.

    • Jennifer A. Cottell Esq. says:

      On April 13, 2021, the Supreme Court of NJ did clarify in Hager v. M&K Construction, Hager v. M&K Constr., 246 N.J. 1 (2021) that a NJ workers’ compensation carrier must reimburse an individual for medical use cannabis and that it was not a violation of federal law to do so. A carrier who is compelled by court order/trial judge to reimburse an injured worker for costs of medical marijuana is not “aiding and abetting” under federal law. Moreover, the carrier was not providing the controlled substance, just reimbursing the individual.
      It is true that some other states’ highest courts have different opinions as to the legality of compelling workers’ compensation carriers to provide medical marijuana or reimburse for it.

      If you have any other questions, please feel free to reach out.
      Thank you.

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