Upon Further Review: The DEA Legalizes a Marijuana-Derived Drug

By Darryl McCallum - Shawe Rosenthal LLP

October 10, 2018

We’ve talked about this before. There is an ongoing tension between state laws decriminalizing or legalizing marijuana for medicinal purposes and federal law, under which marijuana is still classified as an illegal Schedule I Controlled Dangerous Substance.  Back in July, we wrote in our blog that the FDA had recently approved Epidiolex (cannabidiol), which contains a marijuana-derived drug substance, for the treatment of two rare forms of epilepsy.  As we stated in that blog post, this approval by the FDA did not necessarily signify that the federal government would soon reclassify marijuana, removing it from the list of Schedule 1 drugs because it has a medical purpose.

Complicating matters further, on September 27, 2018, the U.S. Drug Enforcement Administration (DEA) announced that Epidiolex is being placed in Schedule V of the federal Controlled Substances Act, the least restrictive schedule of the CSA.  Schedule V drugs are defined as those with a proven medical use and low potential for abuse.  For instance, other drugs that fit in this category include certain cough medicines containing codeine.

In its press release announcing the placement of Epidiolex in Schedule V, the DEA cautioned: “Marijuana and [cannabidiol] derived from marijuana remain against the law, except for the limited circumstances that it has been determined there is a medically approved benefit.  In those instances, such as here, the drug will be made appropriately available to the public for medical use.”

So what does all this mean?  This development makes it increasingly likely that there will soon be another push to reclassify marijuana from its status as a Schedule I drug.  In the past, such efforts have failed because the DEA deemed the research insufficient to support any medicinal value of marijuana use.  Now, the DEA appears to have flipped its position on that issue.

Recently, we wrote about the case of Noffsinger v SSC Niantic Operating Company, in which a Connecticut federal court rejected a federal contractor employer’s argument that the Drug Free Workplace Act prevented it from hiring a medical marijuana user and found that the employer was required to accommodate the use of medical marijuana under state law.  Given these recent developments, employers will likely find it increasingly difficult to legally deny an accommodation for workers who use medical marijuana outside the workplace.

Thus, even though marijuana is still a Schedule I Controlled Dangerous Substance, the recognition under state – and now federal law – of its medicinal value means that all employers, including federal contractors, will need to think carefully before denying employment or denying an accommodation to a medical marijuana user. Of course, as we previously noted, such accommodation would not include the use or being under the influence of marijuana while on duty or in the workplace. But it could very well include permitting off-duty use – and excusing the employee or applicant from drug testing requirements as to marijuana.