Pending Marijuana changes and the impact on FL, GA and TN Work Comp
There has been a lot of discussion regarding the pending changes regarding the Federal government reducing marijuana to a Schedule III drug, allowing for its medicinal use. Below are summaries regarding the state of medical marijuana in Workers’ Compensation in our three states and what the looming changes may mean for the future.
By Morgan Indek, Managing Partner, Orlando
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 1st DCA agreed. Jones v. Grace Health Care, 1D19-1684 (Fla 1st 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.
By Zal Linder, Partner, Atlanta
Background on Medical Marijuana:
As a quick background, under O.C.G.A. § 16-12-191, Georgia only allows the use of medical marijuana in the form of cannabis oils with below 5% THC and at least an equal amount of CDB, and it can only be prescribed for end stage cancer, Alzheimer’s, multiple sclerosis, seizure disorders, Crohn’s, mitochondrial disease, Parkinson’s, and Sickle Cell disease. While Georgia has not had a case dealing with a claim addressing whether medical marijuana is reimbursable, a number of states have permitted reimbursement for legal medical cannabis.
In Vialpando v. Ben’s Auto. Servs., 2014 N.M. App. LEXIS 50, 1-2 (N.M. Ct. App. May 19, 2014), the Workers’ Compensation Appeals Board agreed with the administrative law judge in ordering the reimbursement for medical marijuana to treat the injured worker’s injury despite the employer’s arguments of federal policy that marijuana was illegal. By contrast, in Cockrell v. Farmers Insurance and Liberty Mutual Insurance Company, 2012 Cal. Wrk. Comp. P.D. LEXIS 456, the California Workers’ Compensation Appeals Board denied the reimbursement for self-procured medically recommended marijuana citing that the Health and Safety Code does not require the health insurance provider to be liable for medical use of marijuana. Whether or not an insurer is required to reimburse for medical marijuana depends greatly on the state legislation.
As applicable to Georgia workers compensation, O.C.G.A. § 34-9-17 (b) states: No compensation shall be allowed for an injury or death due to intoxication by alcohol or being under the influence of marijuana or a controlled substance, except as may have been lawfully prescribed by a physician for such employee and taken in accordance with such prescription. On the surface, this would seem to imply that if an employee has a Medical Marijuana card prescribed to them legally by a physician, then that would fall under the exception allowable by the Statute. However, in the same statutory provision, subsection (2) states:
“If any amount of marijuana or a controlled substance as defined in paragraph (4) of Code Section 16-13-21, Code Sections 16-13-25 through 16-13-29, Schedule I-V, or 21 C.F.R. Part 1308 is in the employee’s blood within eight hours of the time of the alleged accident, as shown by chemical analysis of the employee’s blood, urine, breath, or other bodily substance, there shall be a rebuttable presumption that the accident and injury or death were caused by the ingestion of marijuana or the controlled substance;”
Clearly, these 2 provisions in the same statute would be at odds since it specifically designates marijuana as a drug that would entitle an Employer/Insurer to a presumptive denial for a positive test.
Another important issue to remember is the federal law conflict. Marijuana remains illegal from a federal standpoint. Labor law in the United States is not reserved for the states. The federal government, through the Fair Labor Standards Act, along with other laws and agency regulations, sets bounds and rules for employment. An Employer must maintain a working environment that is consistent with both state and federal laws. As I stated above, given the statutory language on medical marijuana, it does not appear to give Employee/Claimant’s protection in an employment setting. Therefore, it can be argued that the intoxication defense will still apply.
Changes on the horizon:
As you may have seen, there are some proposed changes by the Federal Government in terms of the classification of marijuana. Under current 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.
What does this mean right now?
As a Schedule III substance, marijuana will be treated like ketamine or acetaminophen products containing codeine, and other prescription drugs that are controlled substances. Thus, should the changes go through, logic follows that marijuana would likely be treated the same way by the State Legislature. Of course, this may vary from State to State. As I mentioned above, the current intoxication Statutory provision specifically addresses marijuana by name. Thus, I believe that the Georgia State Legislature would have to remove the word “marijuana” from O.C.G.A. § 34-9-17 before Employers and Insurers would lose the entitlement to raise its use as a possible defense on future WC claims.
At the moment, while momentum is clearly shifting towards relaxing the enforcement of marijuana related use and offenses, we do not have any court decisions in Georgia addressing this issue. Given the extremely narrow definition of permissible medical marijuana, absent a change by the State Legislature, it is likely that there will be little impact on the intoxication defense. Nonetheless, it is my recommendation that Employers and Insurers continue to deny any requests for medical marijuana treatment in workers’ compensation claims. Further, I would also recommend that when there is a valid intoxication defense involving medical marijuana, the Employer/Insurer should continue to deny claims for this reason.
By Ben Norris, Associate, Nashville
Current status under TN’s WC Law
Tennessee is not a medical marijuana state; however, hemp-derived CBD oil is legal and, in limited circumstances, Tennesseans can legally possess and use marijuana-derived CBD oil. To legally possess marijuana-derived CBD oil in Tennessee, one must (1) be a participant in a clinical research study on the treatment of intractable seizures, cancer, or other diseases conducted by a university or (2) have proof that the person or immediate family member has been diagnosed with intractable seizures or epilepsy by a licensed doctor and have proof of an order or recommendation for use of marijuana-derived CBD oil. In no circumstances can Tennesseans legally possess marijuana-derived CBD oil containing more than 0.9% THC. See T.C.A. § 39-17-402. The only other way Tennesseans could legally possess any form of marijuana is if it is approved as a prescription medication by the FDA. Several bills were introduced in the Tennessee legislature in 2024 that would have legalized medical marijuana. However, none of these bills have advanced beyond committee hearings.
There are not any Tennessee statutes, regulations or court opinions that require employers/carriers to reimburse employees for payment of medical marijuana. There is also not any caselaw discussing whether an employer’s ability to assert an intoxication defense is impacted by an employee’s legal use of marijuana. T.C.A. § 50-6-110(a)(3) provides that compensation is not allowed when the injury or death is due to the employee’s intoxication or illegal drug usage. As a result, even if an employee is legally using a drug, the claim can be denied as long as the employee’s intoxication from drug use was the cause of the injury or death. Given T.C.A. § 50-6-110 does not provide an exception to the intoxication defense for employees who are legally using marijuana, I believe the intoxication defense remains available to employers in Tennessee claims regardless of whether an employee is legally using marijuana-derived CBD oil in accordance with one of the exceptions listed in T.C.A. § 39-17-402.
Impact of change on TN WC Law
Even if marijuana moves from a Schedule I drug to Schedule III drug, the Tennessee legislature would still have to legalize medical marijuana at the state level for there to be a significant impact on Tennessee claims. If that were to happen, I believe employers/carriers would have to provide medical marijuana to injured workers as a form of pain management unless the legislature specifically banned marijuana as a form of treatment for injured workers, which is unlikely.
If medical marijuana is eventually legalized at the state level in Tennessee, the analysis for the intoxication defense would remain the same unless T.C.A. § 50-6-110 is also amended. Absent such an amendment, the focus would remain on whether the employee’s intoxication/altered state was what caused the injury or death—regardless of whether the substance that led to the intoxication was legally used by the employee.