Medical marijuana is not compensable under Minnesota workers’ compensation law. That was the decision of the Minnesota Supreme Court earlier today. The federal Controlled Substance Act (“CSA”) preempts (i.e. prohibits) Minnesota workers’ compensation law from requiring reimbursement for Minnesota medical marijuana.
This is big news for Minnesota. Currently, there is a split nationwide. Many states, like Minnesota, have “legalized” medical marijuana at the state level. But their courts disagree on this question: does federal law—which makes possessing marijuana a crime, as well as aiding and abetting—preempt workers’ compensation laws from requiring reimbursement for medical marijuana? Minnesota just joined the states that answer that question, “Yes.”
The preemption analysis is straight forward:
- Under the U.S. Constitution’s Supremacy Clause, federal law displaces conflicting state law.
- Federal law, via the CSA, generally criminalizes possession of marijuana, even for medical purposes. That is because marijuana is a Schedule I controlled substance.
- Federal law also criminalizes aiding and abetting CSA possession.
- The Minnesota workers’ compensation courts had ordered the employers and the insurers (in two companion cases) to reimburse the employee for medical marijuana.
- If the employers and insurers had complied, the would have committed federal crimes: aiding and abetting the employees’ possession of medical.
- Therefore, the Minnesota Supreme Court—in the companion cases Musta and Bierbach—held that federal law “preempts an order made under Minnesota’s workers’ compensation law, Minn. Stat. § 176.135, subd. 1 (2020), that requires an employer to reimburse an injured employee for the cost of medical cannabis used to treat a work-related injury.”
The reason why courts in other states have disagreed have varied. The Minnesota Supreme Court rightly rejected them.
- Previously, the U.S. Department of Justice had issued a series of memos, urging federal prosecutors not to prosecute medical-marijuana crimes when the would-be defendant was complying with state law. But the DOJ rescinded those memos in 2018. Further, they did not repeal the CSA or de-schedule marijuana.
- Since 2014, appropriations riders have prohibited use of federal funds for prosecuting CSA crimes when the would-be defendant was otherwise complying with state medical marijuana law. But, again, these appropriation riders did not repeal the CSA, and they are only temporary measures, which expire if not renewed annually.
- These cases involve court orders to pay reimbursement for medical marijuana. But being ordered to pay reimbursement does not negate mens rea. It just might give the defendant an affirmative defense. Further, there is “constitutional danger lurking in [the] argument that a state court order can negate the mens rea for a federal crime.” It “would undermine the entire purpose of the Supremacy Clause of the United States Constitution.”
- The reimbursement would come after the employee’s purchase of marijuana. Generally, one cannot aid and abet a completed crime. But the reimbursement, as pointed out by the Court, “finances [the employee]’s possession and effectively facilitates future possession.” The employee would be buying medical marijuana “based on the expectation that [the employer]’s reimbursement obligation is established by state law.”
Arthur Chapman is proud of the teamwork of Susan Conley (workers’ compensation attorney) and Jeff Markowitz (appellate attorney) on helping to bring this win home for the employer and the insurer in Bierbach v. Digger’s Polaris and State Auto/United Fire & Casualty Group, No. A12-1525, companion to Musta v. Mendota Heights Dental Center & Hartford Insurance Group, No. A12-1551.