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Oct 28, 2020


Massachusetts' highest court held Tuesday that employees who use medical marijuana for treatment for a work-related injury cannot get reimbursed for it through workers’ compensation.  The court wrote that if workers’ compensation insurers had to pay for marijuana, they could in theory be charged with a federal crime since it’s still illegal under federal law to aid or abet someone in using marijuana.



Meanwhile in New Jersey, the state Assembly appropriations committee advanced a bill (A 1708) that would require workers’ compensation and personal injury protection (PIP) auto insurance benefits to cover medical marijuana under certain circumstances.  A previous version of the bill required a patient to try at least one other type of treatment before using medical marijuana, but that provision has been removed.  The bill would also require the person to be enrolled in the state’s medical marijuana program.  A representative of insurers stated at Monday’s virtual hearing that this puts insurers in a very difficult position to violate federal law.  Earlier this year, the NJ Appellate Court ruled an employer must cover an injured worker’s medical marijuana treatment under workers’ compensation.



This year voters in five states will decide whether to adopt either new medical or recreational cannabis laws, or perhaps, both in the case of one state.  South Dakota is looking to legalize both medical and recreational programs.  Arizona, New Jersey, and Montana are voting to legalize recreational cannabis.  Mississippi has two competing measures to legalize cannabis for medical purposes.  Polling indicates that the measures will pass in all five states.  In 2016, cannabis legalization measures passed in eight out of nine states.



The U.S. House of Representatives was set to vote in September on a federal bill, the MORE Act, which would have decriminalized marijuana.  However, that vote was delayed until after the election.  Although this bill probably wouldn’t have passed out of the Republican-controlled Senate, Sen. Chuck Schumer stated that he will make advancing marijuana legalization legislation a priority if Democrats retake control of the Senate.  The U.S. election is next week Tuesday, Nov. 3.


Coronavirus on the Rise


The Centers for Disease Control and Prevention (CDC) updated its COVID-19 guidance changing the definition of a “close contact” of COVID-19 to a person who has been within 6 feet of an infected person for a total of at least 15 minutes in a day.  This includes multiple, but brief, encounters, one or two minutes at a time.  Earlier this month, the CDC updated its guidance to say that COVID-19 can be spread through airborne particles that can linger in the air “for minutes or even hours” – even among people who are more than 6 feet apart.  However, the CDC said the virus is most frequently spread among people in close contact with one another.



In case you missed it – the Michigan Occupational Safety and Health Administration (MIOSHA) issued emergency rules for employers to mitigate the spread of COVID-19.  The rules require businesses resuming in-person work to have a written COVID-19 preparedness and response plan, and to train employees.  The training must include practices to control the spread of the infection, proper use of personal protection equipment, steps for notifying an employer of COVID-19 exposure or diagnosis, and how to report unsafe working conditions.  The rules – some which mirror Gov. Whitmer’s pandemic executive orders that were struck down by the Michigan Supreme Court – will remain in effect for six months.


Making Our Way Around the Country


A New York appeals court remitted a workers’ compensation case back to the Workers’ Compensation Board (WCB) to review a denial of benefits to an employee injured while working from home.  The court addressed how workers’ compensation principles should be applied to employees working from home.  It found the WCB applied a new standard for employees working from home under which injuries are only compensable if occurring during regular work hours and while the employee is actively engaged in work duties as opposed to, for example, taking a short break.  The court stated that the WCB should have used the long-established standard to determine whether the claimant was engaged in a “purely personal” activity that was not “reasonable and sufficiently work related under the circumstances,” and compensability.



A California appeals court ruled that ride-hailing companies must classify their drivers as employees rather than independent contractors, siding with a lower court that the companies were likely violating a state labor law.  The court ordered the companies to reclassify drivers, but not for at least 30 days after the case is sent back to the trial court.  However, California voters may decide the law’s future because of a ballot initiative, Proposition 22, which would allow ride-hailing and food delivery apps to keep drivers as independent contractors while giving them limited benefits but not the full protection of employment status.  They have to wait until Nov. 3 when voters will determine what will be the companies’ next steps.



Just like everything else – Halloween is going to look a little different this year.  Many cities are encouraging residents to avoid traditional trick-or-treating activities and the CDC recommends tips for maintaining social distance and limited the amount of individuals in one shared airspace.  You could stay in and enjoy the Blue Moon or the new season of The Mandalorian.  Whatever you decide – stay safe, stay well, and stay connected.


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