The Maryland General Assembly, having legalized the medical use of marijuana, will continue to consider ways to prevent discrimination in employment, workers’ compensation, housing and handgun permit applications for patients who use a drug still regarded as illegal by the federal government, legislators say.
The legislature will also continue to examine ways to regulate the advertising of medical marijuana to ensure materials do not promote the recreational use of the drug or make cannabis attractive to minors, lawmakers added.
These measures died in the legislature last session but are expected to be reintroduced in 2020 and perhaps beyond. It often takes years of debate before bills are passed by the Maryland legislature, such as when lawmakers abolished the death penalty, allowed same-sex marriage and terminated the parental rights of a mother or father who conceived or sired a child through non-consensual intercourse.
But those legislative proposals did not have to contend with a federal law that countermands the legislation by classifying its object – in this case marijuana, or cannabis – as an illegal, Schedule I drug.
“These are very, very complicated questions,” said outgoing Senate Judicial Proceedings Committee Chair Robert A. “Bobby” Zirkin, a staunch advocate for the medical use – as well as the decriminalization — of marijuana.
“There are not easy answers,” continued Zirkin, D-Baltimore County, who will leave the General Assembly next month. “The federal law hangs out there with marijuana as a Schedule I drug.”
However, Zirkin said the federal government’s regard of marijuana as illegal in all instances should not discourage Maryland lawmakers from pressing forward to protect the rights of patients using medical cannabis. He cited the traditional authority of states to regulate insurance companies, adding that a workers’ compensation insurer should not be permitted to withhold coverage for an employee who legally takes marijuana to treat a work-related injury.
“We should as a state say, unequivocally, ‘no’ to that,” Zirkin said, adding that any prescribed or recommended drug should be covered under the workers’ compensation act.
The legislative proposals rejected last session would have barred employers from requiring employees or job applicants from disclosing their permitted medical use of the drug (Senate Bill 863), required insurance carriers to cover the costs of medical marijuana recommended by a physician for the relief of a work-related injury just as the underwriters would for a similarly prescribed drug (S.B. 854), prohibited landlords from denying leases to a person who possesses medical marijuana (S.B. 862) and barred the Maryland State Police from rejecting a handgun permit to an applicant solely because he or she is a medical marijuana patient (S.B. 97).
Employers who violate the anti-discrimination provisions would be subject to a civil fine of up to $500 by the commissioner of labor and industry for a first offense and up to $2,500 for a subsequent violation.
The advertising regulation (S.B. 859) would have barred promotional material that encourages or depicts the recreational use of marijuana; displays the consumption of the drug; or targets minors by, for example, using a cartoon character, a mascot or any other depiction commonly used to market products to young people.
Any health claims in advertisements would have to be backed by “substantial” clinical data and provide information on the “most significant side effects or risks” of using marijuana, according to the bill. Advertisements would have to include a statement that the drug is for use only by a qualifying patient.
Marijuana as medication
Del. David Moon, D-Montgomery and a member of the House Judiciary Committee, said the legislation would advance when legislators fully accept marijuana as medication subject to the same restrictions as other drugs that people use to treat debilitating ailments and not as illegal contraband.
“I agree with the view that medical cannabis should be treated as medicine through and through,” Moon said.
To wit, an employer cannot discriminate against an employee who takes the drug under medical supervision and must make reasonable accommodations for such an employee — much as employers would for any worker with a medical issue, Moon said. However, an employer may impose “reasonable restrictions,” such as prohibiting a cannabis patient from operating heavy machinery, Moon added.
With regard to housing, the state has a “strong argument” that medical marijuana users should have the same protections as other tenants who take medication, with the potential caveat that a landlord’s across-the-board no-smoking policy would be upheld, Moon said. Such a no-smoking policy would not apply to a person who ingests medical cannabis via smoke-free means, he added.
Handgun applications might leave the state somewhat at the mercy of federal regulations, as background checks generally require disclosure of marijuana use, which may be disqualifying.
Moon said that marijuana use might be a consideration but that it should not be an automatic disqualifier if it is used as a medicine. In defending the application, the applicant should be given an opportunity to explain his or her legitimate use of the drug, Moon said.
“I would like to see us move to a policy where we look at this as medicine,” Moon added. “If someone is consuming medicine, it is a problem to per se disqualify them from everything.”
Sen. Michael J. Hough, a gun-rights supporter, called it “rank hypocrisy” for the state to permit the medical use of marijuana but to prohibit someone from owning a handgun solely because he or she uses marijuana with permission.
“Maryland has this hypocritical position” of summarily rejecting handgun applications based on medical marijuana use that applies to no other doctor-recommended or prescribed drug, said Hough, R-Frederick and Carroll.
Blame put on Delegates
Hough said the fault lies not with the Senate, which passed the measure last session, but with the House of Delegates, where the bill died without even a committee vote because the underlying issue was the constitutional right to keep and bear arms, which is more controversial in the House.
The House would have voted for the bill had it prohibited “taking away any other right” besides keeping and bearing arms, said Hough, a Senate Judicial Proceedings Committee member.
He added that lifting the Maryland prohibition would be largely symbolic, as a Maryland handgun applicant who takes medical marijuana would fail the concurrent federal background check’s prohibition on marijuana users owning handguns.
House Judiciary Committee Chair Luke Clippinger said the gun permit application failed because of concerns that the federal ban on marijuana use would render the legislation essentially meaningless.
“There were a lot of questions” about the bill, said Clippinger, D-Baltimore. “There are concerns about the federal impact.”
Zirkin, the Senate committee chair, said much of the difficulty in preventing discrimination against medical marijuana users rests with the federal government’s continued treatment of the drug as illicit, even though its medicinal benefits are well recognized. He said the General Assembly should press ahead with the proposals to protect medical marijuana users despite the federal treatment.
“What we are talking about is cancer patients,” Zirkin said, noting that opioids are an available treatment by prescription but have proven to be addictive and dangerous.
“Still Washington sits on their hands,” he said. “We should to the greatest extent possible ignore the federal government because, quite frankly, they should be ignored. They should not have the ability to deny simply because it’s cannabis rather than an opioid.”