The U.S. Supreme Court has been asked to consider whether the federal drug law that criminalizes marijuana possession invalidates state orders requiring employers and their workers’ compensation insurers to pay for marijuana prescriptions to medical purposes for employees injured on the job.
However, before fully seizing the matter, the High Court asked the Solicitor General, who represents the federal government before the High Court, for advice in light of the Supremacy Clause of the US Constitution which gives federal laws the supremacy over state law.
Five state Supreme Courts have considered whether reimbursement of medical marijuana expenses is allowed, with two rulings yes and three rulings no. The Supreme Court is invited to resolve this division of authority.
Under the federal Controlled Substances Act (CSA), the manufacture, distribution, or possession of marijuana is a criminal offense, except when the drug is part of a Food and Drug Administration research study.
The Supreme Court’s involvement relates to two Minnesota cases – Bierbach v. Diggers Polaris and State Auto/United Fire & Casualty, and Musta v. Mendota Heights Dental Center – in which injured employees challenged their employers and insurers for having refused to reimburse them. for their medical marijuana prescriptions. Musta suffered a neck injury while working at a medical facility; Bierbach was injured in an accident while working for an all-terrain vehicle dealership.
Minnesota licensed the use of marijuana for medical purposes in 2014. Under the state’s medical marijuana law, the Minnesota Department of Health administers a program that allows certain registered patients to possess marijuana. marijuana for medical purposes.
Under Minnesota workers’ compensation law, if an employee suffers an injury on the job, “[t]The employer must provide any medical treatment…, including… medication… that may be reasonably necessary at the time of the injury and at any time thereafter to heal and relieve the effects of the injury. The Minnesota Workers’ Compensation Court of Appeals ruled in Bierbach’s favor that the employer and insurer were required to reimburse him because prescribed medical marijuana was reasonable treatment for workers’ injuries.
But the insurer and employer appealed, and a divided Minnesota Supreme Court ruled otherwise, ruling that the CSA overrides the Minnesota Workers’ Compensation Court order requiring reimbursement.
The Minnesota High Court adopted the same reasoning in the Bierbach and Musta opinions, holding that reimbursement could expose the employer and the insurer to criminal liability. The court found that the CSA had preempted an order “requiring[ing] an employer to reimburse an employee for the cost of medical cannabis because compliance with this order would expose the employer to criminal liability under federal law for aiding and abetting… unlawful possession of cannabis.
After losing in the Minnesota Supreme Court, Bierbach sought a writ of certiorari for the Supreme Court to review the judgment in his case. In his petition, Bierbach makes several arguments to counter the view that the refund policy conflicts with the CSA.
First, he says that federal and state laws are not irreconcilable. “A reimbursement order under Minnesota workers’ compensation law does not require an employer to possess, manufacture or distribute marijuana in violation of the CSA. And the law does not prohibit an employer or insurer from reimbursing an employee for their purchase of medical marijuana,” Bierbach argues.
He rejects the “complicity” argument, noting that marijuana possession is terminated at the time of reimbursement and asserting that the employer and insurer are merely complying with an order for reimbursement. At most, they only “incidentally” facilitate possession.
Bierbach further notes that Congress has repeatedly passed appropriation bills with riders that prohibit the Department of Justice from enforcing federal marijuana laws in medical marijuana programs that comply with the law of the state. According to Bierbach, this shows that Congress has chosen to “tolerate” the tension between state medical cannabis laws and the CSA.
Finally, he argues that the CSA has no role in insurance regulation.
Thirty-seven states have legalized marijuana for medical purposes, according to the National Conference of State Legislatures. Of those states, six have reimbursement for cannabis as part of workers’ compensation, including four based on a state court ruling, according to the American Journal of Industrial Medicine. Six others prohibit the reimbursement of workers’ compensation, while other states do not require it or are silent on the issue.
However, future policy in the states may now be subject to change if the Supreme Court enters the fray.
Four state Supreme Courts in addition to the Minnesota Supreme Court have issued conflicting rulings on the issue of federal preemption. The Supreme Courts of Maine and Minnesota have ruled — on dissent — that the CSA preempt an order under their states’ workers’ compensation laws requiring reimbursement for medical marijuana. But the Supreme Courts of New Hampshire and New Jersey have come to the opposite conclusion when it comes to their states’ medical marijuana laws.
The Supreme Court did not indicate the Solicitor General’s deadline for filing his factum. It usually takes months.
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