As the 2019 Maryland legislative session winds down, two bills pending before the Maryland legislature are positioned to create significant changes and additional uncertainty, within Maryland’s Workers’ Compensation framework. Committee Chair Sen. Bobby Zirkin (D-Baltimore County) is the lead sponsor of Senate Bills 854 and 863, two bills specifying the use of medical cannabis in the context of workers’ compensation cases.

Background

Senate Bill 854 states that a covered employee or dependent is not entitled to workers’ compensation or associated benefits if the accidental injury or occupational disease was caused solely by medical cannabis and the medical cannabis was not administered or taken with the written certification of a certifying provider or the written instructions of a physician. The bill —perhaps most critically — also would amend Labor & Employment Article Section 9-660 to include medical cannabis under the list of treatment, services and medications that an employer or insurer must provide to a covered employee when directed by the commission.

Senate Bill 863 prohibits employers from requiring employees or applicants to disclose their use of marijuana and cannabis. In fact, the bill prohibits an employer from even inquiring into an employee’s use of marijuana or cannabis. An employer who violates this provision would be subject to criminal prosecution. Despite these rights granted to employees, the statute does protect an employer’s right to investigate whether an employee used or possessed marijuana on the premises.

Representing employers and insurers: The central, threshold question remains

Upon first glance, these two bills would seemingly provide some clarity for specific situations involving marijuana and cannabis within Maryland’s Workers’ Compensation system. However, the central, threshold question remains for those of us representing employers and insurers: faced with a commission order mandating authorization of medical marijuana, how can we legally advise our clients to approve a drug categorized as a Schedule I controlled substance under federal law? To advise our clients to comply with the terms of the order would be to consciously advise them to violate the federal Controlled Substances Act. To advise our clients to ignore the order would constitute legal malpractice as it would expose them to significant attorney’s fees and penalties handed down by the commission.

Unfortunately, there is no clear answer at this point and these bills will not remedy that inevitable dilemma. The most likely scenario is that neither the Drug Enforcement Administration nor the Department of Justice would seek to enforce federal law on Marylandworkers’ compensation cases. After all, since 2014, Congress has approved a budget amendment, the Rohrabacher-Farr amendment, which prohibits the Department of Justice from using funds to prevent states from implementing their medical marijuana laws. Still, that amendment needs to be re-enacted each year, so circumstances could change suddenly and drastically on a yearly basis. The amendment was renewed for 2019 on January 25, 2019, with the approval of federal budget.

With the Rohrabacher-Farr amendment in place, insurers are provided with a very tenuous protection against prosecution from the federal government. Ultimately, Maryland will likely have to follow the example set by other states in addressing this exact dichotomy. Connecticut, Maine, Minnesota, and New Jersey are among those states that have seen insurers ordered to pay for medical marijuana in workers’ compensation claims. New Mexico’s highest appellate court has upheld the authorization, while Florida and Illinois courts have expressly prohibited requiring an insurer to pay for medical marijuana in connection with a workers’ compensation claim.

Perhaps the best example came from the Maine Supreme Court in June 2018. In Bourgoin v. Twin Rivers Paper Co., LLC, the court overturned a commission ruling, which required the insurer to pay for medical marijuana. Despite the Rohrabacher-Farr amendment in place, the court eloquently wrote, “A person’s right to use medical marijuana cannot be converted into a sword that would require another party, such as [the employer], to engage in conduct that would violate the (Controlled Substances Act).” The court noted that the Rohrabacher-Farr amendment was essentially irrelevant as it was the mere fact of compelling the employer/insurer to violate federal law that was impermissible.

Conclusion

Ultimately, these bills need to be passed by the Maryland House before this issue comes to bear in Maryland. However, given the developing trend in the state’s prosecutorial and legislative approach to marijuana and cannabis, it seems extremely likely that some variation of the bills will come into effect. If the Maryland House approves the bills, they would take effect on October 1, 2019.