by The U.S. Supreme Court recently had the opportunity to decide the issue of whether an employer can be required to pay for medical marijuana when it is prescribed as part of treatment otherwise covered under workers compensation. After consideration, the Court decided not to decide the issue.
The Supreme Court had before it two Minnesota cases that had been appealed after rulings by the Minnesota State Supreme Court. The Supreme Court of Minnesota had held that a state workers’ compensation administrative rule requiring employers to cover the cost of medical marijuana prescribed for work-related injuries was preempted by the federal Controlled Substances Act (CSA). The CSA makes it illegal to possess or distribute marijuana. The Minnesota court said the state law was invalid because it would force employers to violate the CSA by subsidizing the purchase of marijuana.
After the Minnesota cases had been appealed to the U.S. Supreme Court, the Court requested that the federal government file a brief and provide its analysis on whether state laws requiring that workers be reimbursed for the cost of medical marijuana to treat on-the-job injuries were preempted by the CSA. The federal Department of Justice (DOJ) submitted a brief (i.e., written argument) on the matter. The DOJ’s brief took the position that the CSA does preempt state law. However the DOJ also argued the U.S. Supreme Court should stay out of the issue for the time being and let states and the federal executive branch handle the issue at this point.
In an order issued on June 21, 2022, the Court stayed out of the issue by denying the appeal of the Minnesota cases. By denying the appeal, the Court leaves the issue of whether reimbursement is required under workers compensation to the states for now.
Thirty-seven states have laws permitting the use of medical marijuana or cannabis derivatives in varying degrees. The current answer to the question of when state law permitting medical cannabis also requires workers compensation reimbursement for prescribed use is that it depends on the state. Some states, like North Dakota, have statutes that tell employers they are not required to pay for medical marijuana prescribed to injured employers covered by state workers compensation programs. Other states, like New York, require employer reimbursement for medical marijuana under workers compensation. The majority of states with medical marijuana laws have not directly addressed the issue.
Currently, state workers compensation law in the following Upper Midwest states provide that neither employers nor their insurers are required to reimburse the cost of medical marijuana for injured employees:
- Minnesota
- North Dakota
- Iowa
- South Dakota
Nebraska and Wisconsin have not legalized the use of medical marijuana.
The question of workers compensation reimbursement is an evolving state law issue. It is an issue where employers with employees in multiple states may face different requirements, depending on which state the employee works or resides. Check with your state or your legal counsel on the current laws on medical marijuana and workers compensation in states you have employees. Ask your counsel to update you on any changes to current laws in this area.
