The Smoke Hasn’t Cleared: What’s the Workplace Impact of the FDA’s Approval of a Marijuana Based Drug?

By Darryl McCallum - Shawe Rosenthal LLP

July 13, 2018

The FDA recently approved Epidiolex (cannabidiol), which contains a marijuana-derived drug substance, for the treatment of two rare forms of epilepsy.  Does this mean that the federal government is saying that people can now begin using a marijuana-based drug treatment – including employees in the workplace? Not so fast.

Although the medical use of marijuana is legal in 29 states including DC and Maryland, under the federal Controlled Substances Act (CSA), marijuana is still classified as a Schedule 1 drug. This means it has no medical value and a high potential for abuse. The FDA’s recent action leads to the question of whether the government will soon reclassify  marijuana, removing it from the list of Schedule 1 drugs, now that it has an acknowledged medical purpose. But it’s not that easy.

First, the drug approved by the FDA is an oral solution which, while it contains a chemical derived from marijuana, does not contain the chemical in marijuana that actually causes intoxication.  The FDA cautions: “We’ll continue to support rigorous scientific research on the potential medical uses of marijuana-derived products and work with product developers who are interested in bringing patients safe and effective, high quality products. But, at the same time, we are prepared to take action when we see the illegal marketing of [marijuana-derived] products with serious, unproven medical claims.”

Second, despite the fact that the FDA has approved the use of a marijuana-derived product, there are no signs that the Drug Enforcement Administration (DEA) is prepared to go through the process of removing marijuana from the list of Schedule 1 drugs, which would be necessary in order for the drug to enter the market in the United States.  The DEA has, in the past, denied petitions to reclassify marijuana from a Schedule 1 drug to a Schedule 2 drug, which are recognized as having some medical value (these include cocaine or methamphetamine).  While the tide may be changing, reclassification involves extensive research on a large scale to prove that a drug has medical value, and the federal government’s classification of marijuana as a Schedule 1 drug makes it difficult for such research to occur.  In addition, Attorney General Sessions, in his January 2018 memorandum rescinding the Obama-era enforcement guidelines regarding marijuana (which essentially deferred to state law), referred to marijuana as a “dangerous drug” and stated that marijuana activity is a “serious crime,” throwing more cold water on the idea that DEA is prepared to reclassify marijuana anytime soon.

So employers are left with the status quo.  That is, in order to comply with federal law, employers covered by Department of Transportation (DOT) regulations must continue to follow certain steps for employees who test positive for marijuana, even if the marijuana was legally obtained for medical purposes under state law and used outside the workplace.  In addition, because marijuana is still classified as a Schedule 1 drug, employers who have contracts with the federal government must comply with the Drug Free Workplace Act, which requires, among other things, that the employer establish a drug-free awareness program that educates and makes employees aware of the dangers of drug abuse in the workplace.  That said, employers in states that allow for medical use of marijuana must pay close attention to the language of the statute in their particular state.  Unless such employers are subject to federal laws or regulations such as DOT regulations or the Drug-Free Workplace Act, they may need to make exceptions to their workplace policies that preclude hire or employment of individuals who test positive for marijuana.