Greetings,

As you may have heard, there are proposed changes at the Federal level regarding the use of medical marijuana.  As of right now there has been no official change yet, but here is a recap of where we are in Florida, the proposed changes at the Federal level and the timing, and the likely impact in Florida.

Current status under Florida’s WC Law

The Florida law that provided for the use of medical marijuana in the state specifically banned the provision/reimbursement under the WC law. 

FL Stat Section 381.986(15)(f)  Marijuana, as defined in this section, is not reimbursable under chapter 440.

In a case challenging the statute, the JCC denied a referral for an evaluation to see if a claimant was a candidate for medical marijuana, and the 1^st DCA agreed.   Jones v. Grace Health Care, 1D19-1684 (Fla 1^st DCA 2021).  So it was fairly well settled that we did not have to provide or reimburse for medical marijuana under WC in Florida.

As for the intoxication defense, we do not have a definitive case on the impact of a medical marijuana card.  However, as it remains illegal under Federal law, I hold the opinion it is still a valid intoxication defense denial under 440.09 even if it was certified for use by a physician.

Proposed Federal Changes and Process/Timing

Under Federal law, marijuana is classified as a Schedule I drug by the DEA.   It is illegal, dangerous and as addictive as substances like heroin, with “no accepted medical use”, per the Federal rule.  The DEA studied the Schedule I status and rejected changing it in 2016.

In 2022, the President directed both the departments of HHS and DEA review how marijuana is scheduled under the law.  The news last week was that the after the HHS and DEA review,  the Attorney General circulated a proposal to reclassify marijuana from Schedule I to Schedule III.  Schedule III drugs “are classified as having a potential for abuse less than the drugs or other substances in schedules I and II, a currently accepted medical use in treatment in the United States, and moderate or low physical dependence or high psychological dependence that may result from their use.”

Basically, if marijuana moves from Schedule I to Schedule III, then there is no Federal ban on its use as a medication like there is now.

The process will take some time however to become “law”.   The DEA now must draft the new rule.  After the proposed rule from the DEA, the agency will begin a 60-day public participation period and allow for interested parties to request hearings on the record.   Then after the final rule is approved, it must be published in the federal register for 30 days before it becomes effective.

So we are at least several months away from the proposed change becoming effective.

As a Schedule III substance, marijuana will be treated like ketamine or acetaminophen products containing codeine, and other prescription drugs that are controlled substances.   

Impact of change on FL WC Law

Well, the Florida statute on medical marijuana does specially ban it’s provision by employer/carriers under the FL WC law (FL Stat Section 381.986(15)(f)).   Unless that is amended, it may remain so.   However, if that statute is amended to remove ban, we would likely have to provide medical marijuana to injured workers as the only basis for the ban was the Federal classification of it being a Schedule I drug with no medicinal use.

As for the intoxication defense, it may change that as well.  Currently, for example, if a claimant tests positive for opiates, as long as they have a prescription, it is not a failed drug test.  If there is no prescription, they are taking a controlled substance illegally, and there is a failed drug test.   The same will likely hold true for marijuana under the intoxication defense, even if the Florida statute banning its provision under WC is not amended.  Prescription = no failed drug test, no prescription =  failed drug test.

What impact this will have on the overall FL medical marijuana law and dispensaries remains to be seen.

All of this is a few months down the road, and I will be sure to follow the progress and update you as it moves through the process.

Please let me know if you have any questions in the interim.

Please join us on 7/26/24 in Tampa for our 9^th live CEU dinner event (no there will not be samples provided)

Be sure to check our firm’s website for upcoming CEU events and webinars for FL, GA and TN:   https://eraclides.com/events/

Sincerely,

Morgan Indek | Managing Partner