High court may hear workers’ comp marijuana case

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The U.S. Supreme Court may soon weigh in on an issue that has caused headaches for Minnesota workers’ compensation carriers and employers: whether employees can be reimbursed for injured workers’ medical marijuana.

On Feb 22, court requested that Solicitor General Elizabeth Prelogar submit an amicus brief on the issue to express the views of the U.S. government.

The issue of medical marijuana and reimbursement goes beyond Minnesota. Thirty-six other states and Washington, D.C., have laws that legalize marijuana use for qualifying medical conditions. There are an estimated 3.6 million medical cannabis patients. Most are using medical marijuana to manage chronic pain, a condition that affects approximately 100 million Americans.

Even though medical marijuana has been legalized in these states, it is expensive, often costing more than double what it would cost on the street. In the case of Daniel Bierbach, a Minnesota employee who brought a case before the Minnesota Supreme Court, it was costing him $1,860 each month. While other medicine, therapies, and care were covered, he was not reimbursed for medical marijuana.

Bierbach injured his ankle when he was driving an all-terrain vehicle while he was employed by Polaris in 2004. Following the injury, Bierbach tried to rehabilitate the ankle through physical therapy, surgery, and a variety of medications and treatments. Bierbach will need to have ankle replacement surgery, but given his age at the time of the accident, he was too young to receive the procedure immediately. Instead, Bierbach suffered for the next 15 years until he finally got relief by using medical marijuana. According to Bierbach, it is the only medical treatment that works.

Similarly, Susan Musta, another Minnesota employee injured on the job in a dental office, tried numerous pain-management techniques. Medical marijuana was the only treatment that worked for her. Like Bierbach, the cost was prohibitively expensive and not reimbursed by her employer.

Deciding a pair of cases brought by these employees, the Minnesota Supreme Court held in October that the 2020 state workers’ compensation law requiring employee compensation was preempted by the federal Controlled Substances Act (CSA), which makes it illegal to possess, manufacture, or distribute marijuana.

It maintained that the state law would force employers to violate the CSA by subsidizing the cost for employees, tantamount to committing a federal crime. Despite arguments that there was a low likelihood of prosecution for marijuana, and that the employers were providing money after the marijuana was purchased, the court was unpersuaded that this would negate the employers’ mens rea. It found that employers reimbursing for medical marijuana would be criminally liable due to the federal law.

Following the ruling, Michael Schultz, counsel for Bierbach, had this comment: “We are certainly disappointed to see the court’s decision today. The Minnesota Supreme Court split from other State Court jurisdictions that have found Federal Law, specifically the CSA, does not preempt an insurance carrier from reimbursing an injured workers prescribed out of pocket medical cannabis expense.”

Therein lies the problem. States are very divided on this issue. Florida and Massachusetts explicitly prohibit employee reimbursement for medical marijuana. Maine and Minnesota top courts have held that reimbursement for medical marijuana constitutes a violation of federal law. In Connecticut, New Jersey, and New York, employers are required to reimburse for medical marijuana. Top courts in New Jersey and New York have held that these reimbursement laws are not preempted by the Controlled Substances Act.

In the New Jersey case of Hager v. M&K Construction, the court found that, to violate the CSA, one must possess, manufacture, or distribute marijuana. It concluded that reimbursement was not an activity that fell under any of these categories. Additionally, reimbursement was happening after the fact and not before the purchase. The court also concluded that the enforcement of the CSA with regard to medical marijuana was effectively suspended due to defunding of the DOJ in this area.

In November 2021, Musta filed a petition to the U.S. Supreme Court for a writ of certiorari. In January 2022, Bierbach filed a petition for a writ of certiorari. After considering the solicitor general’s amicus brief, the court will decide whether to grant certiorari to Musta’s or Bierbach’s case.

The other solution to this conflict is to remove cannabis from the list of Schedule 1 controlled substances. Two-thirds of Americans believe that marijuana should be legal. Nearly 90% agree that marijuana should be legalized for those using it for medical reasons.