The Florida Legislature has passed CS/CS/CS/SB182 (committee substitute for Senate Bill 182), and it has been signed into law. This amends section 381.986, Fla. Stat. There has been significant news coverage of this change on platforms such as the Orlando Sentinel and CBSNews.com. For some reason, the statutory changes have spawned a fair volume of questions and conjectures.
Coincidentally, I ran into a former Vermont Judge last week at the American Bar Association Midwinter Workers' Compensation seminar in Coral Gables. Judge Phillips was part of an exceptional panel discussion regarding alternative approaches to pain treatment. Marijuana naturally arose in that conversation. According to NBC News Miami, "people are signing up for medical marijuana in Florida in record numbers – about 3,000 new patients a week." The NBC investigators concluded that "more patients are taking medical marijuana for chronic pain than anything else."
(L-R) Katherine Poirer, Teresa Bartlett, M.D., Becky Curtis, Phyllis G. Phillips.
Judge Phillips was asked about her decision in Hall v. Safelite Group, Inc., Opinion No. 16-18WC. She was kind to forward me a link to that decision, in which she adjudicated the issue of medical use of marijuana in a workers' compensation setting. The primary question was "Does use of medical marijuana constitute reasonable treatment." And, if so, "can the Commissioner compel Defendant to reimburse Claimant for his medical marijuana purchases?
There is no doubt that under U.S. law, there are significant challenges to "Medical Marijuana" (January 2015). The Maine Supreme Court has declined to order an employer/carrier to pay for marijuana. Federal Law Matters in Maine Also (June 2018). In an employment setting, the Colorado Supreme Court concluded that "medicinal" use of marijuana is not "lawful activity," despite the state's legislation to decriminalize marijuana. So Federal Law Matters in Colorado (Coates v. Dish Network) (June 2015). However, there are at least seven jurisdictions that have ordered employer/carriers to violate federal law and provide marijuana reimbursement.
Judge Phillips noted in her order that Hall's "only measurable symptom relief" comes from marijuana. That is similar to the factual finding in Coates, regarding the efficacy of pot for his seizures. Mr. Hall was noted as smoking "between four and six marijuana joints daily." He was expending "between $190 and $300 for a half ounce to an ounce of marijuana" on a "four to six-week" basis.
Judge Phillips concluded that the claimant's evidence was persuasive regarding the "reasonable treatment" question. She accepted as persuasive the treating physician's testimony regarding the substance, Mr. Hall's use of it, and the physician's observations of the claimant's symptomatology.
She then turned to an in-depth analysis of the legality of an employer/carrier paying for pot. Her analysis is one of the most detailed I have seen. Of note, she concluded that various memoranda from the federal government "neither altered the (Vermont) Department’s ability to enforce federal law nor provided a legal defense to any violation of federal law." That conclusion is logical and sets a stage for all involved in the use of marijuana, both directly (patient, doctor) and indirectly (payer, such as an employer/carrier).
Judge Phillips provides an analysis of litigation in New Mexico, Maine, Connecticut, and Montana. Ultimately she turns to the "Vermont Medical Marijuana Statute." She notes that this law says it "shall not be construed to require that coverage or reimbursement" be provided by health insurers, Medicaid, employers, or specifically "an employer defined" for "purposes of workers' compensation." She notes that not all of the states' medical marijuana statutes are so specific as to workers' compensation. Judge Phillips notes that a Maine decision specifically concluded that if its legislature had intended to exempt workers' compensation from paying for marijuana, it would have said so specifically.
Judge Phillips characterizes the implication of federal laws as a "shadow cast" on the subject of payment for marijuana. Ultimately, she concluded that an employer/carrier in Vermont cannot be compelled to pay for a substance that is listed in Schedule I, which is illegal under federal law. At the Coral Gables program, she mentioned that a significant hurdle for marijuana is the dearth of research. She was quite dismissive of Mississippi when mentioning that the University of Mississippi is the only place federally legal marijuana is grown for research. But, dismissive New Englanders should remain mindful that Mississippi has a comma; not every state can boast such sophistication as Mississippi (March 2017).
The question for Floridians may now be whether an employer/carrier must provide marijuana for an injured worker. A subset of that question may be raised based upon the construction and conclusions of other states, that is whether an employer/carrier might be compelled to reimburse a Florida injured worker who has self-obtained marijuana. During the panel discussion in Coral Gables, one of the panel members questioned "Can the carrier be compelled to pay for the worker's scotch?" That is an interesting comparison that may stimulate interesting conversations and perhaps arguments.
So, what does CS/CS/CS/SB182 change in Florida? It essentially adds marijuana smoking to the "delivery" methods allowed; the "devices intended" for "smoking need not be dispensed from a medical marijuana treatment center." (Line 101, Line 684). However, smoking is specifically still not allowed in a "public place" (Line 126) or on "public transportation" (Line 124), or "a school bus, a vehicle, an aircraft, or a motorboat." (Line 134). And, smoking it is not allowed "in an enclosed indoor workplace." (Line 136). Some may interpret that as allowing smoking marijuana in an outdoor workplace. But, there is a limitation that says the law "does not impair the ability of any party to restrict or limit smoking or vaping marijuana on his or her private property." (Line 745). There is also a constraint on smoking as a delivery process if the patient is "under 18 years of age" in certain circumstances. (Line 244).
The statute limits the supply of marijuana in a "form for smoking" to "one 35-day supply" "within any 35-day period." That 35-day supply "may not exceed 2.5 ounces" unless an exception is granted by the state (Line 283).
The addition of smoking as a delivery process comes with a warning. The physician must obtain "voluntary and informed consent of the patient" regarding use of any marijuana "each time the qualified (Line 180) physician issues a physician certification for the patient." This "must include" "information related" to
"The potential side effects of marijuana use, including the negative health risks associated with smoking marijuana" (Line 202).
One of the proponents of marijuana has argued that "there have been no reported medical cases of lung cancer or emphysema attributed to marijuana." There will thus perhaps be differences of opinion regarding what the side effects and risks of smoking are, and thus what will be included in that "informed consent." The statute later (Line 599) concludes however that "marijuana smoke contains carcinogens and may negatively affect health." The packaging for "marijuana in a form for smoking" must be labeled with a warning that so states. Thus, there will be a warning signed by the patient (consent) and one posted on the packaging. Those who smoke may later find it difficult to seek compensation if lung disease or other maladies result from smoking marijuana.
What does the enactment of CS/CS/CS/SB182 change in Florida workers' compensation? That is a more specific question. The subjects of workers' compensation and insurance are not addressed in the bill. Section 381.986(15) already addresses "workers' compensation, but not by name. This provides that:
"(15) APPLICABILITY.—This section does not limit the ability of an employer to establish, continue, or enforce a drug-free workplace program or policy. This section does not require an employer to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana. This section does not create a cause of action against an employer for wrongful discharge or discrimination. Marijuana, as defined in this section, is not reimbursable under chapter 440."
And, thus the issues for Florida workers' compensation appear to be minimal for now. That is not to say that issues will not or cannot arise. However, it is likely that those developments are for another post, another day.
