Wednesday, January 28, 2015

"Medical Marijuana"

I have always found the oxymoron intriguing. Some examples are "jumbo shrimp," or "adult children," or "genuine immitation." As the debates rage across the country, and as Floridians contemplate state law change or constitutional amendment, there is much discussion of "medical marijuana." Is that term an oxymoron or not?

The Drug Enforcement Agency, "DEA," one of the agencies of the United States government with responsibilities regarding drugs, recites the federal process used to categorize drugs. Various drugs are listed in "schedules," and the extent of legal control or restraint of a particular substance is guided by which schedule in which it is listed. Section 812(a) of the Controlled Substances Act sets forth this "schedule" system: "There are established five schedules of controlled substances, to be known as schedules I, II, III, IV, and V. Such schedules shall initially consist of the substances listed in this section."

The constraints of Schedule I are broad. Section 812(b)(1) of the Controlled Substances Act, says:
"(1) Schedule I. - 
(A) The drug or other substance has a high potential for abuse.
(B)  The drug or other substance has no currently accepted medical use in treatment in the United States.
(C) There is a lack of accepted safety for use of the drug or other substance under medical supervision."

The DEA website says that "Some examples of Schedule I drugs are: heroin, lysergic acid diethylamide (LSD), marijuana (cannabis), 3,4-methylenedioxymethamphetamine (ecstasy), methaqualone, and peyote" (emphasis added).

The Food and Drug Administration, "FDA," is another federal agency concerned with medication. On its website, it recites some provisions of the Controlled Substances Act.

"The term ''controlled substance'' means a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter." "The term marihuana means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination." That is a comprehensive definition.

From all of this, it seems that marijuana is a controlled substance, with no currently accepted medical use. The term "medical marijuana," would seem to actually then be defined as medical use of a drug with no accepted medical use. 

States have passed laws allowing the prescription of "medical marijuana." In factm 23 of fifty states have such laws (list here), some more detailed or constrained than others. Four states have recreational marijuana laws. According to, Colorado and Washington passed laws in 2012; Oregon and Alaska passed laws in 2014. The District of Columbia also voted on recreational marijuana, but that jurisdiction is a federal district, and their decision is subject to the approval of Congress. 

The basis for such laws may be an exception described by the FDA as "compassionate use." The FDA website describes this as making "promising drugs and devices available to patients with serious or immediately life-threatening diseases." In this context, something which lacks FDA general acceptance may be used for treatment. Coincidentally, some laws like California's Proposition 215, that legalize "medical marijuana" use "compassionate." Prop 215 is titled the "Compassionate Use Act of 1996."

In 2014, I noted questions regarding the federal "preemption." In a post titled Zohydro or Pot, a Study in Federalism. Under our United States Constitution, when the federal government acts pursuant to some enumerated power, their action can "pre-empt" states from acting in that same area. A helpful explanation of that process regarding Massachussets' unsuccessful efforts to ban Zohydro are available on Patti Zettler's blog, Zohydro Update and A Second Zohydro Update. Essentially, the court ruled that since the federal government regulated Zohydro, the states could not do so; the states were preempted from doing so. The same preemption does not appear to apply to marijuana.

Most recently, Marijuana is back in the news in New Mexico. WorkCompCentral (subscription) reported in January that the New Mexico Court of Appeals has again ruled that workers' compensation is liable for the cost of marijuana. The most recent case is Maez v. Riley Industrial. Following the precedent of its 2014 decision on the subject, the court concluded that medical marijuana is compensable under the "Lynn and Erin Compassionate Use Act, NMSA 1978, §§ 26-2B-1 to -7."

Is this monumental news? The subject of marijuana remains complex. As WorkCompCentral reported, Courts in California, Oregon, and Washington state have concluded that an employee may be terminated for marijuana use, even while off duty. The same result in the Federal Seventh Circuit (Indiana, Illinois, and Wisconsin). The article also notes, though, that at least Michigan has held that such a terminated employee is nonetheless entitled to unemployment compensation. 

Currently, employers and lawyers watch and await a decision of the Colorado Supreme Court. It heard arguments last year in Coates v. DISH Network. According to the Denver Post, this case asks "if it isn't illegal to use medical marijuana, does that make it a lawful activity for which employers can't fire you?" An interesting question. Phrased this way, it does not acquiesce in the fact that use of marijuana is not lawful activity according to the federal government. The perspective is that Coates uses pursuant to a prescription, thus it is "medical marijuana," and so arguably legal under the compassionate use standard. 

There is a fair amount of authority to support that "drug free" can apply to prescription drugs. The Department of Labor says on their website that employers may include prescription of over-the-counter medications, but that workplace requirements must be weighed against employee privacy concerns. In the context of using such substances, is the employer interest safety, in which case the impairment caused by the drug may be the real issue?

The Coates question as phrased, and the courts, do not go to any lengths to explain how something illegal under federal law can be legally used under state law. One of the issues in Coates, noted by National Public Radio, is that the Federal Drug Free Workplace Act places restrictions on federal government and contractors. Some federal contractors and all federal grantees are required to provide a drug-free workplace. It's terms apply to the "controlled substances" that are listed in the Schedules discussed above. To protect its ability to do government work, a company may have to test for substances such as marijuana.

Can employers test for legal, yet controlled, substances in the workplace? Can employees be terminated for testing positive? Does it matter if the positive test can be equated to impairment, such as seen in alcohol use, versus presence? Some tests for marijuana may remain positive for days or weeks after the effects or impairment of the drug have subsided. What kind of testing would measure marijuana "impairment?"

In at least one high profile case reported by ESPN, of a race driver named Tony Stewart, a medical conclusion was published that a victim was "under the influence of marijuana the night of the accident enough to impair judgement." The type of testing, and the measurement process or standards used to reach this conclusion are not explained.  The situation there suggests that there is testing that measures impairment from marijuana as opposed to simply the proof that it has been used at some point.

The current national environment will present ongoing challenges in workers' compensation. Marijuana remains illegal under federal law. It remains defined by federal law as having "no currently accepted medical use." It is nonetheless being prescribed by doctors in almost half of the states under "compassionate use" state laws that seem to contradict the federal definition under Schedule I. The federal government has declined to enforce federal law in that regard, and is not prosecuting either the users or those who prescribe for, or supply, them. 

Questions remain regarding whether the federal government would enforce the Drug Free Workplace Act, punishing employers with federal contracts if they failed to test for drugs and take appropriate actions with employees who test positively. Employers may begin to face interstate issues as well. Maez v. Riley Industrial appears to involve a New Mexico employee and employer, with a medical recommendation to use marijuana in a state with a compassionate use law. 

Currently neither Georgia or Alabama are on the list of "compassionate use" states. For the time being, Florida may not face the neighboring state issue. There is indication that some states see the potential for complications from marijuana legalization in neighboring states, and litigation has begun. Federal courts will decide if a state can sue its neighbor for the burdens caused by its regulation or lack of regulation of marijuana. The implications of such a suit make me think about the "pill mills" and the way some states regulated distribution of narcotics. 

There are other potential interstate issues. If a Florida resident worker is injured in Florida, and then moves back to Michigan to be with family, a carrier might authorize a treating physician in Michigan. If that Michigan physician prescribed "medical marijuana" under the Michigan Medical Marijuana Act, would the Florida employer/carrier be responsible for such treatment under the Florida workers' compensation law? Does the absence of any Florida "compassionate" use law affect that analysis?

Or, if a resident of a state like Michigan or New Mexico travelled to Florida to work and suffered an accident here, and then returned home for treatment including marijuana and sought payment or reimbursement as part of her/his Florida workers' comp claim for such treatement, would it be the Florida employer/carrier's responsibility? Would Florida workers' compensation compel provision of a medical modality that is not legal in Florida in such a situation?

Or, assume that Georgia or Alabama passed either compassionate use medical marijuana or recreational marijuana. Then an employee who lives in that state is hired and travels daily to work in Florida. This happens more than some might think. For example, Kingsland Georgia is a reasonably short 35 mile commute to the industry of Jacksonville. Would it matter that the marijuana is legal in the employee's state of residence in that context? 

In the context of the Coates challenge in Colorado, would such an employee's legal use (under hypothetical Georgia of Alabama law) make it inappropriate for a Florida employer to terminate under their Drug Free Workplace program as DISH terminated Coates in Colorado?

There are many questions. 

Section 812(a) of the Controlled Substances Act, cited above, establishes the "schedules." That section also says "the schedules etablished by this section shall be updated and republished on a semiannual basis." Would removal of marijuana from Schedule I change the answers to any of these questions? There are those who criticize its inclusion in Schedule I. There are those who point to physicians prescribing in 23 states as proof that there are accepted medical uses, which they argue supports moving this substance to another Schedule. 

The discussions will continue. The closest state to Florida with a compassionate use law is currently Maryland. The southern states have not joined the movement as yet. So the issues may come more slowly to Florida, but it is likely that they will come nonetheless. In the meantime, it is interesting to watch some of the questions play-out elsewhere. It is perhaps helpful to see how such issues are decided in other states.

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