More Workers' Compensation challenges - presumptions, marijuana, opioid overdoses, litigation

Presumptions

The proliferation of presumption laws during the pandemic upended the basic tenets of work comp and the trend has continued nationally.

According to NCCI, 2023 saw an uptick in bills addressing coverage for Post-Traumatic Stress Disorder (PTSD), primarily for first responders. However, some states considered legislation to expand coverage to more types of workers, and Connecticut enacted legislation expanding eligibility for workers' compensation benefits for PTSD injuries to all employees covered by comp. Minnesota authorized a study to determine regulatory changes to improve outcomes for employees with PTSD. Missouri established PTSD as a compensable occupational disease for first responders. Virginia added several cancer presumptions for first responders, as well as presumptions for anxiety and depressive disorders.

Expect this trend to continue in 2024.

Marijuana

Spikes in substance misuse and unintentional workplace overdose deaths are daunting issues for employers. Positive tests for marijuana are at a 25-year high. While medical marijuana remains a legal quandary, case law, statutes, and regulations are emerging. Laws significantly vary by state with 38 states, three territories, and the District of Columbia allowing the medical use of cannabis products and 24 states, two territories, and the District of Columbia allowing recreational use.

For medical marijuana, many states require employers to provide a reasonable accommodation for authorized users and/or are not permitted to refuse employment or otherwise discriminate against authorized medical marijuana patients.

For recreational marijuana, concerned about penalizing employees engaged in legal activities, some states have begun to bar tests that screen for pot use. Michigan bars pre-employment drug screening for cannabis for state employees, except for safety-sensitive positions. When recreational marijuana passed in Minnesota, a new law imposed limitations on "cannabis testing" - a newly created category of testing specifically for cannabis products. In addition to state laws, some municipalities, including New York, Philadelphia, and San Francisco, have laws banning or restricting private employers from testing employees and applicants for marijuana. Yet, several states have no marijuana testing restrictions on employers.

In New York, employers may not refuse to hire, fire, or otherwise discriminate against an employee's legal use of marijuana outside of the workplace, including the legal use of marijuana before an employee's work shift. Effective this year, California has a law that generally bars employers from penalizing individuals because of off-the-clock marijuana use.

State legislatures continue to debate the issue of reimbursement for medical marijuana in workers' compensation. According to the American Academy of Actuaries, 14 states have determined, either through statute, court decision, or administrative ruling, that insurance carriers can't be required to reimburse an injured worker for medical marijuana, leaving open the possibility that reimbursement could be made voluntarily. Six states explicitly allow for workers' compensation reimbursement. Underscoring the dynamic nature of cannabis and hemp laws, eight months after it ruled that medical marijuana is covered under workers' compensation, a Pennsylvania appeals court recently concluded that an injured worker's cost of CBD oil is also compensable.

Generally, employers are under no obligation to accommodate marijuana possession and use during work hours and are permitted to take adverse employment actions against employees who are under the influence of or impaired by marijuana at work, absent any reasonable accommodation requirements. However, in the face of rapidly changing laws and testing limitations, some multi-state employers have abandoned most marijuana testing and instead rely on observations of employee performance and conduct to assess impairment.

The legal landscape for cannabis and CBD will continue to be a hot issue in 2024. Employers need to be aware of the current law in all jurisdictions they have employees and keep on top of legal developments.There should be a clear written policy for employment-related drug testing that can evolve with new laws and clearly does not discriminate against medical marijuana cardholders. Weigh the possibility of shifting to impairment recognition for non-safety-sensitive jobs with considerations for recruitment, manager training and responsibilities, and workplace culture.

Opioid overdoses

Unintentional workplace overdose deaths reached an all-time high of 525 in 2022, rising 619 percent since 2011 according to the National Safety Council (NSC), and represent nearly 10 percent of all occupational deaths. Last year's FDA approval of nonprescription over-the-counter naloxone nasal sprays, which rapidly reverse the effects of opioid overdose, makes the life-saving drugs more accessible to employers. The CDC and NSC have encouraged employers to set up naloxone protocols, but there are no OSHA standards or regulations that deal with drug overdoses. The National Institute for Occupational Safety and Health (NIOSH) issued resources in 2018 for employers considering whether they should implement a naloxone availability and use program.

Employers that choose to stock naloxone need to ensure that those who may be administering drugs are appropriately trained, that proper PPE, such as gloves and face protection, is available and have a policy regarding the administration of the drug. The legal ramifications of a program should be considered. While many experts say the FDA-approved nonprescription naloxone nasal sprays will not harm someone who is given the drug but is not suffering an opioid overdose, companies should consider state Good Samaritan laws and discuss issues of liability and safety with counsel.

Litigation trends

The industry has made strides in reducing legal involvement in claims. Artificial intelligence (AI) and advanced analytics enable insurers and employers to take early, proactive actions by assessing claim complexity, predicting the likelihood of litigation, and providing warnings about a change in status as well as identifying suspected fraudulent activity. Prioritizing efficiency and speed in the claims process and improving communication also avoids delays in payments or treatment authorizations, which can lead to an erosion of trust and litigation.

Anecdotally, a review of the 2023 cases we reported suggests hot topics are efforts to sidestep exclusive remedy, cumulative trauma injuries, mental injuries, employee vs independent contractor, the going and coming rule, workplace violence, and COVID-19.