In late June, the U.S. Supreme Court declined to hear an appeal weighing whether the Controlled Substances Act preempts a state workers’ compensation law requiring employers to reimburse an injured worker for medical cannabis expenses. Two Minnesota residents raised their separate challenges after being hurt while working on the job and were denied their case.
“Technically, the only possibly correct reason they denied the case is because fewer than four of the justices believed that the case was worthy of certiorari. There have to be more than four justices reviewing a case, so if you get a denial, one justice will issue a statement saying they should review it for certain reasons, but even if one says something about it, you do not know what the others think,” Shane Pennington, counsel in Vicente Sederberg’s office, said.
Not the First MJ Workers Compensation Rodeo
According to the National Law Review, this issue has been addressed by many state courts over the years, dating back to 2014, when New Mexico’s Court of Appeals authorized the reimbursement of medical marijuana in workers’ compensation claims in Vialpando v. Ben’s Automotive Services, but in the past few years has been addressed by courts in Maine, New Hampshire, New Jersey, New York and most recently, Minnesota, with mixed results. Courts in Maine, Massachusetts and Minnesota have identified a positive conflict between state law and the CSA, while those in New Hampshire, New York and New Jersey found no conflict and authorized reimbursement. Due to the split between the two sets of states, the petitioners sought review from the Supreme Court.
Pennington says that state law requires employers to reimburse for medical marijuana expenses, but courts have gone different ways on this issue. There is some conflict between state and federal law — where federal law is required to carry the day or if it is possible to apply both laws. The courts continue to take different positions on this conflict, which has been shown in all of these medical marijuana workers compensation cases.
The Six States Where Medical Marijuana is Reimbursable
A recent report from the National Institute for Occupational Safety and Health (NIOSH) breaks down where cannabis is reimbursable in workers’ compensation, where it is not, and how employers should conduct themselves in states where the law does not say either way. On the whole, 36 states and Washington D.C. have laws that make marijuana use legal for qualifying medical conditions. Of those, six states are on record as requiring workers’ comp insurers to reimburse medical marijuana. They are Connecticut, Minnesota, New Hampshire, New Jersey, New Mexico, and New York.
Federal Legality Changing the Game
If and when cannabis becomes federally legalized, Pennington thinks that we will definitely see more coverage for medical marijuana expenses. States that have already legalized cannabis have expressed some confusion on the preemptive issue, and once federal legality comes into play, it could be a completely different set of rules. While this also would not prevent certain states from taking a different, more conservative position, it is very likely that the coverage would still expand.