While each state has its own unique workers compensation program, workers’ compensation generally requires employers to reimburse the reasonable medical expenses of employees injured on the job. Depending on the injury, these expenses can include hospital visits, follow-up appointments, physical therapy, surgeries, and medications, among other medical care. In recent years, medicinal cannabis has become increasingly popular to treat a myriad of ailments — as of February 2022, 37 states, the District of Columbia, and three territories Now allow the use of medical cannabis.
While this is good news for patients looking to seek treatment for problems like chronic pain, medical cannabis laws can cause harm Big headache for employers. A federal law known as the Controlled Substances Act (CSA) classifies cannabis as first table material, which means that under federal law, it is not currently authorized for medical treatment anywhere in the United States and is not considered safe to use even under medical supervision. So, what happens when an employee is injured on the job, qualifies for workers compensation, and medical cannabis is prescribed to treat work injuries in a state that permits medical cannabis?
Employers face a difficult dilemma: They can reimburse an employee for medical cannabis as a reasonable medical expense and risk violating the federal ban on aiding and abetting cannabis possession. Or they can refuse to pay otherwise reasonable medical expenses and risk violating the State Workers Compensation Act.
Usually, when it is impossible for an employer to comply with both state and federal law, federal law wins—a legal concept called conflict preemption. Unfortunately for employers, clarity on this issue will have to wait – the US Supreme Court recently dismissed two requests Review state Supreme Court cases on this issue and make a final decision on whether the CSA is preempting state worker compensation laws requiring compensation for medical cannabis. In the absence of federal guidance, national employers with workers in different states must follow the decisions of the group of state courts that have addressed the matter. The state courts that decided the case have come to inconsistent conclusions – thus, whether an employer should reimburse medical cannabis will vary depending on the state in which the employee was injured.
For example, in Maine and Minnesota, the two states’ highest courts have concluded that employers are not required to pay for medicinal cannabis for their injured employees. These courts have held that employers will face liability under Canadian space law for aiding and abetting the purchase of a controlled substance. If the employer compensates employees for medical cannabis use, it will intentionally support the employee’s purchase of marijuana in direct violation of federal law. However, in such a case, the employer may also violate state law by refusing to reimburse the employee’s reasonable medical expenses. The courts of these two states have held that it is impossible for an employer to comply with both laws, and have concluded that the federal ban on cannabis preempts state workers’ compensation laws.
States like New Jersey have gone the other way, requiring employers to reimburse employee medical cannabis. The New Jersey Supreme Court has concluded that there is no conflict between the prohibitions imposed by the CSA and the demands of the New Jersey Workers’ Compensation Act. Thus, federal law did not pre-empt New Jersey law, and employers were required to comply by indemnifying medical cannabis as reasonable compensation.
Meanwhile, Massachusetts has followed Maine and Minnesota’s approach, but did so based on its own medical marijuana law, not the CSA. Massachusetts law expressly excludes health insurance providers or any governmental agency or authority from the reimbursement requirement because doing so would violate federal law.
Given this disparity in state decisions, employers must exercise caution in determining whether they approve or reject medical cannabis as reasonable medical expenses under state employee compensation laws. While the answer is relatively clear (for now) in the states discussed above, there are still more than 30 states with medical cannabis programs that have not addressed this issue. It’s important to note that many of the state’s medical cannabis laws include provisions like Massachusetts that exempt employers from compensating employees for cannabis—a clear indication that these laws were designed with federal prohibitions. But these provisions are not necessarily conclusive – the New Jersey medical cannabis law has a similar provision, yet New Jersey employers are still required to reimburse medical cannabis.
The bottom line is that violations of federal criminal law can be huge, including a mandatory $1,000 fine, possible imprisonment of up to one year, and possibly more if “aggravating factors,” such as previous convictions, are found. So employers should pay special attention to their state medical cannabis laws, workers compensation laws, as well as the CSA and consult with an attorney to determine the best approach in their particular jurisdiction. More of these cases are likely to be filed in the future, so be sure to check back for more developments in this evolving legal field.