Medical Marijuana – A High Maintenance Problem Around the Corner?

Virginia appears set to become the latest state to decriminalize possession of marijuana as the legislature has sent a bill to the Governor’s desk to do just that. In addition, the Joint Legislature and Audit & Review Commission has been tasked with developing recommendations for the complete legalization of marijuana by July 1, 2022. There are going to be sticky situations for employers and carriers when deciding what to do with medical marijuana prescriptions sooner rather than later.

Are you willing to make a federal case out of it?

Marijuana remains a Schedule I substance under the Controlled Substance Act. 21 U.S.C. § 813. As a Schedule I substance, marijuana has not currently accepted medical use and a high potential for abuse. The purchase and possession of marijuana remains a federal offense.

Article VI, Clause 2 of the Constitution establishes that “the Laws of the United States…shall be the supreme Law of the Land.” In a conflict between federal law and Virginia law, federal law is going to, in nearly all scenarios, prevail. The United States Supreme Court has already weighed in on the issue of medical marijuana, holding that the power of Congress to govern interstate commerce gives it the power to regulate the purchase and possession of marijuana, even where a state has legalized the use of marijuana. Gonzales v. Raich, 545 U.S. 1 (2005).

An employer and carrier could be criminally prosecuted for providing access to medical marijuana, as it would require a violation of federal law to provide payment to a dispensary. A trip to the Court of Appeals, Virginia Supreme Court, or beyond may be necessary to develop case law to protect an employer and carrier from this exposure to criminal prosecution.

What about CBD oil?

Cannabidiol is extracted from cannabis, and has been growing in popularity as an alternative to traditional pain and anti-inflammatory medication. While CBD oil does not contain THC, the psychotropic element which produces the colloquial “high”, THC-A oil does. Virginia already allows exceptions for the possession and use of CBD and THC-A oils when a medical practitioner issues “a written certification for the use of cannabidiol oil or THC-A oil for treatment or to alleviate the symptoms of any diagnosed condition or disease determined by the practitioner to benefit from such use.” Virginia Code § 54.1-3408.3(B). In addition, an individual must also obtain a registration from the Board of Pharmacy.

There is limited accepted medical science on the effectiveness of CBD oil. A lack of science will not prevent the Commission from ordering an employer and carrier to pay for the treatment if the claimant alleges that it brings some measure of relief. “An injured employee is entitled to necessary medical care for the consequences of his work injury to alleviate painful symptomatology for his lifetime, even if the care is palliative and brings only temporary relief.” Sanchez v. I Beam Construction Inc., JCN VA02000011790 (Feb. 20, 2019) citing Brame v. Hazelton Research Prods., VWC File No. 150-03-98 (Nov. 3, 2003); Davis v. Old Oak Mining, 76 O.W.C. 113 (1997).

While not litigated to date, a plain language interpretation of the current state of the law gives the appearance that any prescription for THC-A oil, even one issued pursuant to Virginia Code § 54.1-3408.3(B), would expose an employer and carrier to potential criminal prosecution under the federal Controlled Substances Act.

What should employers and carriers do in the interim?

1. Assuming the decriminalization bill is signed by the Governor, every employer should ensure that it has a drug-free work policy. This will protect the ability to bring willful misconduct defenses to claims where an employee claims the use of marijuana or CBD oil was medicinal.
2. When faced with a prescription for THC-A oil, an employer and carrier should defend against being required to furnish the treatment on the grounds that it could lead to criminal prosecution for providing the substance.
3. Though a Virginia practitioner is not currently able to write a prescription for medical marijuana, claimants that live in jurisdictions where it is permissible could still present a prescription from those jurisdictions. Any prescription should be vigorously defended against for the reasons outlined above.
4. When faced with a prescription for either THC-A oil or medical marijuana, an employer and carrier should thoroughly investigate the claimant to determine if there is pre-existing substance abuse. Uncovering pre-existing substance abuse gives the employer and carrier an opportunity to argue that the prescription is neither reasonable or necessary for treatment of the workplace injury.
5. In the alternative, if the employer and carrier are inclined to provide coverage for a THC-A oil or medical marijuana prescription (and the cost will almost certainly be less than current heavily prescribed opioids), they should not pay for the prescription directly. Rather, the employer and carrier should insist that the claimant pay for the prescription directly, and then reimburse the claimant once presented with documentation of purchase. This would produce layer of separation from the purchase and possession of THC-A oil and medical marijuana.

Medicinal marijuana is almost certainly coming to Virginia. Employers and carriers are best served to begin developing policies and procedures for dealing with it now, rather than developing a plan on the fly in 2022.

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