Cannabis and Comp
| Publication year | 2022 |
| Author | RANDY H. POLLAK, ESQ. |
RANDY H. POLLAK, ESQ.
THOUSAND OAKS, CALIFORNIA
The legal status of cannabis in the United States is an evolving landscape. California is a leader in the push for legalization of cannabis. However, California is also less progressive, or outright confusing, in terms of what the legalization of cannabis means for the daily lives of those who use it for medical and recreational purposes. In the context of workers' compensation, the state of California is ambiguous as to the impact of cannabis on injured workers who may benefit from its use in treating their work injuries. For example, try to answer the following questions with clarity: Can an injured worker get cannabis for treatment in a workers' compensation claim? Can the employer be made to pay for it? The answer to each of those, in the view of this author, is: It's complicated. This article attempts to provide answers to those questions as far as existing law can provide guidance and to discuss the legal framework for workers' compensation practitioners addressing these issues.
To start, this article is using the word cannabis, not pot or weed or dope or even marijuana. Those terms are imprecise and can connote stigma or judgment. Cannabis refers to all products derived from either the plant cannabis sativa or the plant cannabis indica. Cannabinoids are a group of substances found in the cannabis plant. The major cannabinoids are tetrahydrocannabinol (THC) and cannabidiol (CBD).
At the federal level, cannabis remains classified as a Schedule 1 substance under the Controlled Substances Act. Schedule 1 substances are considered to have a high potential for dependency and no accepted medical use, making their distribution a federal offense. However, this legal status is evolving. Recently, U.S. President Joe Biden directed the Department of Health and Human Services and the U.S. Attorney General to initiate the administrative process to review how cannabis is scheduled under federal law. (See https://www.whitehouse.gov/briefing-room/statements-releases/2022/10/06/statement-from-president-biden-on-marijuana-reform/.)
Despite cannabis being a Schedule 1 substance, enforcement of its possession, cultivation and personal use is another matter altogether. Since 2014, Congress has barred the Justice Department from expending funds to impede states from implementing their own medical cannabis laws. For example, if a criminal defendant charged under the Controlled Substances Act can show that they strictly complied with state medical marijuana laws, the government may not expend funds on their prosecution and the criminal proceeding must halt. (See, for example, United States v. Pisarski, 965 F.3d 738 (9th Cir. 2020) (affirming stay of federal prosecution when the defendant strictly complied with state medical marijuana law).)
This enforcement landscape has provided room for states to experiment with varying legal schemes for cannabis, ranging from full legalization for recreational use, to only medicinal use, to some variation in between.
California became the first state to allow medicinal cannabis use, when voters passed the Compassionate Use Act in 1996. In 2016, California voters passed Proposition 64, which legalized possession, cultivation and personal use of cannabis.
In California, it is legal for a person 21 years of age or older to possess, purchase or give away up to one ounce of cannabis and as much as eight grams of concentrated cannabis. Adults can also cultivate up to six live cannabis plants. Smoking or ingesting marijuana is illegal in public places, as is its use while in a car. Retail sales of cannabis at licensed dispensaries are subject to standard state sales tax and an excise tax of 15 percent. Local governments may enact additional taxes on cannabis businesses.
[Page 4]
With legalization, various businesses, including growers and dispensaries, have taken the dive into the cannabis industry...
To continue reading
Request your trial