In what is being referred to as a historic first, three prominent senators from both parties, Rand Paul (R-KY) , Corey Booker (D- NJ) and Kirsten Gillibrand (D-NY) held a press conference yesterday introducing bipartisan legislation that would essentially end the federal ban on medical marijuana. If passed, this legislation could affect carriers, employers and their policies regarding the use of medical marijuana by employees.
The Compassionate Access, Research Expansion and Respect States Act (CARERS) seeks to reclassify marijuana from a Schedule I banned substance to a Schedule II drug. This would end the long standing federal ban on marijuana that has been in place since 1970 when the Controlled Substance Act was passed, classifying marijuana as a Schedule I drug. As a result, states that have already legalized marijuana for medical purposes, of which there are now 23 and the District of Columbia, would be permitted to address and legislate in favor of medical marijuana without interference from the federal government. Under current laws, the federal government can interfere with the sale of medical marijuana even if the state government has legalized it. We now have a patch work of state laws legalizing medical marijuana, however, the overriding federal law continues to ban it.
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.
This is a major development in a series of recent developments in the last year suggesting that the federal government’s position is changing. For instance, this past December a Republican-led Congress defunded the Justice Department’s budget essentially taking away the DEA’s ability to carry out raids in states where marijuana is legal under state law.
The introduction of this legislation suggests that we are ultimately going to have legal medical marijuana throughout the country in the not too distant future. What appears to be behind the change sweeping the country are the actual stories of individuals, many of whom are children, presenting anecdotal evidence that this drug may be helping people. Despite those apparent success stories, there is little scientific data confirming a distinct or direct correlation. The Schedule I classification of the drug has prevented extensive research and testing. This new legislation should change that.
To date, federal courts throughout the country including the most liberal states, California, Colorado, Washington and Oregon have found for the employers in cases where an employee using medical marijuana legally, under their states’ laws, brought suit for wrongful termination. If this bill passes, this will likely change as the states’ marijuana laws will be enforced (many of which provide an anti-discrimination clause). In addition, the passage of this bill will likely result in insurance carriers and workers’ compensation carriers being required to pay for medical marijuana when prescribed by doctors. In 2014 the Appellate Court of New Mexico did just that, affirming the workers compensation Judge’s holding requiring the workers compensation carrier to pay for the injured worker’s medical marijuana, despite the federal ban. These developments will create myriad issues for both employers and carriers in the coming years with regard to employment, safety, testing and paying for medical marijuana and require employers to review and update their handbooks and policies.
For more information, please contact John C. Kutner at jkutner@wglaw.com or 973.854.1077.