Reclassification of Marijuana is Underway, but Approval for Workers’ Comp and Auto Injuries Will Take Time

May 28, 2024 by

Barely noticed outside marijuana industry groups, the Biden Administration has been moving to change the classification of marijuana as a less dangerous drug. That follows a recommendation by the U.S. Department of Health and Human Services to the Drug Enforcement Agency last year to reclassify the substance from a Schedule I drug to a Schedule III drug. The move by the DEA will portend change in how marijuana is used to treat workers’ compensation and auto injury claimants.

On April 30, sources in the DEA revealed the agency is taking steps to officially reclassify marijuana, and that news is getting noticed. Moving marijuana to Schedule III would not legalize it federally for recreational use, but it would for medicinal use. The DEA website defines Schedule III drugs as those “with a moderate to low potential for physical and psychological dependence.” Some examples of Schedule III drugs are products containing less than 90 mg of codeine per dosage unit (Tylenol with codeine), ketamine, anabolic steroids, testosterone.

For workers’ comp and auto personal injury claims, the current status of marijuana as a Schedule I drug is creating challenges for employers and insurers. As more states legalize marijuana for medicinal use, carriers and employers find themselves potentially at odds with federal law as physicians recommend marijuana to treat claimant injuries.

State and federal courts have issued conflicting rulings on whether insurers or employers are required to reimburse for medical marijuana. The U.S. Supreme Court had an opportunity in 2022 to hear two cases out of Minnesota but decided the issue wasn’t ripe for their consideration.

The change in status of marijuana will clear up any questions on the legality of reimbursing claimants for medical marijuana. Classifying marijuana as a Schedule III drug will also create an environment in which marijuana will be subjected to more rigorous clinical trials and FDA standards for prescription drug use. Better clinical data will help employers and insurers gain greater confidence around medical marijuana use and provide researchers with information needed to weave the clinical use into treatment guidelines

However, reclassification could take some time. The DEA took the next step toward that process on May 16 by releasing a formal ruling for rescheduling. This action kicks off a 60-day public comment period. After that time, the ruling will undergo a judicial review prior to approval. After the rulemaking process and judicial review, the DEA could publish a final rule.

Moving marijuana to Schedule III would allow the FDA to regulate it like any other prescription medication. It would also make it easier for researchers to gain access to marijuana for study purposes. Over time, medical marijuana will likely move from the corner dispensaries you see today to local pharmacies and would be distributed like other prescription drugs. It would also make it easier for providers to prescribe medical marijuana.

Once the FDA starts approving prescription medical marijuana, it will become more common as part of the drug regimen for a claimant. Marijuana would still need to be medically necessary for a particular injury, and FDA approval would indicate approved clinical uses for the drug. Medical marijuana would have to meet the same criteria for use as any other medication.

Still, the federal rulemaking process can take months to years, and drug manufacturers will need time to develop, test and clinically try any proposed drug before it is ready to market to consumers. So, it will be quite some time before an approved marijuana-based medication is ready to join the mainstream of medications.

Allen is vice president of government affairs for Enlyte’s Pharmacy Solutions team. In this role, Allen provides clients with insight into new legislation and regulations in pharmacy solutions and workers’ comp. He is a nationally recognized policy expert for workers’ compensation and insurance issues.