On August 1, 2018, some Minnesotans diagnosed with obstructive sleep apnea or autism will be able to use medical cannabis to alleviate symptoms associated with those conditions for the first time. Individuals diagnosed with either condition were eligible to begin the state’s registration and enrollment process on July 1, 2018, for access to medical cannabis beginning one month later. These most recent additions to Minnesota’s medical cannabis “qualifying conditions” list exemplify a significant shift in potential eligibility for medical cannabis. In the early years of medical cannabis, states often restricted eligibility to a short list of very severe conditions. However, several states have since expanded their qualifying conditions lists – meaning that individuals diagnosed with a wide variety of conditions may now be using medical cannabis. This raises a number of issues for employers; schools/childcare providers; and healthcare providers who are increasingly likely to have employees, students, or patients who are using or pursuing medical cannabis.

Federal Law Overview

Marijuana, including medical cannabis, is a Schedule 1 controlled substance under the federal Controlled Substances Act. This means the distribution, possession, and use of marijuana remains an illegal activity under federal law. Since 2014, however, an amendment to the federal budget has provided a layer of protection against legal action to those who produce, recommend, and use medical cannabis in accordance with state law. The so-called Rohrabacher–Blumenauer amendment (previously known as the Rohrabacher–Farr amendment) prohibits the U.S. Department of Justice from using federal budget dollars to prevent states from implementing laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

However, the Rohrabacher–Blumenauer amendment does not change the legal status of marijuana and must be renewed each fiscal year to remain in effect. Although the open opposition of U.S. Attorney General Jeff Sessions to marijuana legalization has raised questions about the future of the Rohrabacher–Blumenauer amendment, Congress extended the amendment through September 30, 2018, in its March omnibus budget bill.

State Law Overview

States with medical cannabis programs have typically legalized the use of medical cannabis by individuals diagnosed with specific conditions who have completed a multi-step registration process. In some states, medical cannabis remains limited to individuals with epilepsy or another seizure disorder. Many states, though, permit medical cannabis use by individuals diagnosed with a variety of serious conditions including HIV/AIDS, ALS, cancer, chronic/intractable pain, and terminal illness. Some states also permit medical cannabis use by individuals diagnosed with anorexia or PTSD.

The process by which different states consider expanding medical cannabis eligibility varies. In Minnesota, members of the public may petition the Department of Health (MDH) to recognize a new qualifying medical condition using a form available on the MDH website. In 2018, MDH began accepting petitions on June 1 and will stop accepting petitions on July 31. During the 2018 petition window, MDH has already received a petition to make juvenile rheumatoid arthritis a qualifying condition. A volunteer review panel will subsequently meet to consider the petitions and receive public input, followed by the announcement of any new qualifying conditions.

What To Know

With the 2018 additions to its qualifying conditions list, Minnesota becomes one of the first states to permit medical cannabis use by individuals diagnosed with autism or obstructive sleep apena. This is notable because obstructive sleep apnea and autism are both conditions that are prevalent in the general population among people who are often well enough to work or attend school. In the past, when most states limited medical cannabis eligibility to profoundly life-threatening or life-limiting conditions, individuals using medical cannabis may not have been part of the workforce or participating in educational activities outside their home/care setting. Now, however, employers and educators would be well-served to assess what it means for their employees and students to use medical cannabis. Specific areas to consider include the impact of medical cannabis use on an employer’s drug testing policies and whether an employer or place of learning will permit the storage and/or use of medical cannabis on the premises.

Health care providers should also pay attention to the expansion of medical cannabis eligibility in the states where they see patients. Although states generally have specific requirements applicable to health care providers who wish to recommend and/or certify patients for medical cannabis use—even health care providers who do not recommend the use of medical cannabis—should stay up to speed on what is currently permitted within the state(s) where they practice. Health care facilities – such as hospitals and residential mental/behavioral health providers –should also stay abreast of applicable state law. Of particular importance, facilities located in states that have legalized medical cannabis should develop and implement policies that explain whether medical cannabis will be treated differently than other medications a patient may bring from home and self-administer.

Ultimately, it is highly likely that eligibility for medical cannabis will continue to grow. Because of this, employers, schools, and health care providers should act now to ensure they are watching for developments in the law, looking out for tricky issues and putting in place effective policies and procedures to guide their organizations’ response to the use of medical cannabis by employees, students, and patients.