Over the last several years, I’ve been talking about how medical marijuana will ultimately become an issue in workers’ compensation and, with several cases we’ve seen across the country, this has become a reality. In each of my pieces, there is always a note that, even though states are moving to legalization (currently 23 states, the District of Columbia and Guam), the possession of medical marijuana remains a federal crime as it is a schedule I substance under the Controlled Substances Act (CSA). However, over the last couple of years, things have been changing very quickly relative to the federal government’s position on medical marijuana. It’s not just the President’s comments or revised Department of Justice policies that have raised the possibility the federal government is going down a path that could ultimately legalize medical marijuana; other areas of government are taking action too.
The two primary ways to change the scheduling of marijuana are congressional action or administrative action; there have been moves on both fronts that bear watching.
The Compassionate Access, Research Expansion and Respect States Act (CARERS), Senate Bill 683, was introduced in the U.S. Senate on March 10, 2015 by Rand Paul (R-KY), Corey Booker (D- NJ) and Kirsten Gillibrand (D-NY). Barbara Boxer (D-CA) joined as a co-sponsor on March 17, 2015. The major aim of the six-part legislation is to reclassify marijuana under the CSA from schedule I to schedule II in recognition that the substance has some medical uses. In addition, this bill would permit interstate commerce in cannabidiol (CBD) oils, allow banks to provide checking accounts and other financial services to marijuana dispensaries, allow Veterans Administration physicians to recommend medical marijuana to veterans and eliminate barriers to medical marijuana research. The bill is currently pending in the Committee on the Judiciary.
The 1,603-page $1.1 trillion federal omnibus spending bill signed into law by President Obama on December 16, 2014, provides in Section 538 that none of the funds made available to the Department of Justice could be used to prevent states listed from implementing their own state laws that authorize the use, distribution, possession or cultivation of medical marijuana. To block implementation of the recreational marijuana initiative voters in the District of Columbia approved during the November 2014 election, Section 809 of the bill prohibits the use of federal or any other funds contained in the bill to legalize or otherwise reduce penalties associated with the possession, use or distribution of marijuana.
The process for administrative rescheduling is specified by 21 USC 811. The Attorney General on his or her own or through the Drug Enforcement Administration (DEA) requests a scientific and medical evaluation and recommendation to determine whether a drug should be scheduled, rescheduled or removed from control entirely. Bloomberg Business reported June 2014 that the Food and Drug Administration (FDA) is studying, at DEA request, whether the classification of marijuana should be changed. A presentation prepared March 2015 by the FDA on its work on medical products containing marijuana describes the FDA's role in scheduling and indicates that scientific review of public data and an 8-factor analysis is ongoing.
Previous requests to reschedule marijuana were denied due to a lack of existing scientific and clinical evidence to warrant the change. The National Institute on Drug Abuse (NIDA), part of the National Institutes of Health, grows marijuana for approved research in partnership with the University of Mississippi. Last year the DEA increased NIDA’s production quota from 46.3 pounds to 1,433 pounds, citing urgent need for research. Reportedly of the 100 grants for marijuana research, at least 28 studies are of the plant’s potential therapeutic uses in treatment of pain, inflammation, seizures, autoimmune disease and addiction.
Federal action on marijuana is at a crossroads. Not only do we have a new Attorney General with the swearing in of Loretta Lynch on April 27, 2015, a new DEA Chief will be named to replace Michele Leonhart who resigned on April 21, 2015. During confirmation hearings, Ms. Lynch testified that she is opposed to the legalization of marijuana. It remains to be seen what changes in policy will occur during her tenure.
In the meantime, employers contending with this complex and rapidly changing issue can refer to the guidance published in the April 2015 issue of the Journal of Occupational and Environmental Medicine. The report jointly prepared by the American College of Occupational and Environmental Medicine (ACOEM) and the American Association of Occupational Health Nurses (AAOHN) addresses temporary impairment as it relates to the workplace, discusses prevention of injuries related to impairment and suggests various strategies available to employers for monitoring workers for marijuana use.
Darrell Brown, Chief Claims Officer