SCOTUS seeks medical marijuana workers' comp opinion
The U.S. Supreme Court has asked for the solicitor general's opinion on requiring employers to pay for workers' medical marijuana if they're injured on the job.
The U.S. Supreme Court has asked the solicitor general to weigh in on two petitions centered on the same issue: Does the federal prohibition of marijuana preempt state workers’ compensation laws that require employers to pay for injured workers’ medical marijuana/?
In Musta v. Mendota Heights Dental Center and Bierbach v. Digger’s Polaris — the two cases at hand — the Minnesota Supreme Court said the answer is yes. Maine’s Supreme Judicial Court reached the same conclusion in 2018. But high courts in New Hampshire and New Jersey have said no, such state requirements don’t conflict with federal law.
“For years now, workers’ compensation carriers and employers who operate in states with legal marijuana have been dealing with a lot of uncertainty surrounding this issue,” said John Kutner, the New Jersey-based chair of the cannabis and opioid industry team at Weber Gallagher Simpson Stapleton Fires & Newby. “It’s creating a lot of headaches for employers, specifically with regard to how each state is handling the issue differently.”
And as the number of states legalizing cannabis grows, so do the cases of workers using marijuana for pain relief.
“As dispensaries come online throughout the state, at least in New Jersey … it’s definitely on the increase,” Kutner said. “And it’s only going to continue to increase especially in light of the opiate issue. Marijuana is a potential alternative to treat pain or chronic pain.”
So is the U.S. Supreme Court signaling it wants to provide some clarity on the workers’ comp issue?
“We can always be surprised, but I don’t think so,” said Alexander Malyshev, co-chair of the cannabis, hemp & CBD industry group at Carter Ledyard & Milburn. “Not this case, not this time.”
The U.S. Supreme Court has asked for the solicitor general’s opinion on marijuana cases but hasn’t shown an appetite for wading into them, Malyshev noted. Last June, Supreme Court Justice Clarence Thomas notably criticized the federal government’s “half-in, half-out” approach to marijuana, which allows states to condone its use but denies licensed dispensaries from taking typical business expense tax deductions. But the court still denied cert in the related tax case.
The solicitor general could take the court’s invitation to opine on the workers’ comp issue to affirm its support for the 2013 Cole memo, which discouraged federal prosecution of state-licensed marijuana operators who comply with state law, Malyshev and others have noted. In its 2018 opinion on workers’ compensation and marijuana, the Maine Supreme Court noted that then-U.S. Attorney General Jeff Sessions had rescinded the Cole memo and said that if companies reimbursed workers for their medical marijuana expenses, they would be aiding and abetting those employees in committing a federal crime.
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