Workers Comp and Medical Marijuana

The Maine Supreme Judicial Court has held that an employer cannot be required to reimburse for an injured employee’s use of medical marijuana

Through its enactment of the MMUMA, the Maine Legislature has  exempted qualifying patients and other specified individuals from state  prosecution that otherwise could arise from the medical use of marijuana. The Legislature, however, does not have the power to change or restrict the  application of federal law that positively conflicts with state law. See U.S. Const.  art. VI, cl. 2. So long as marijuana remains a Schedule I substance under the  CSA, see 21 U.S.C.S. § 812(c)(Sched. I)(c)(10), an employer that is ordered to  compensate an employee for medical marijuana costs is thereby required to  commit a federal crime defined by the CSA. See 18 U.S.C.S. § 2(a); 21 U.S.C.S.  § 844(a). This creates a positive conflict between the CSA and this application the MMUMA. See 21 U.S.C.S. § 903. As invoked against Twin Rivers, the MMUMA requires what federal law forbids, and the authority ostensibly  provided by the Maine law is “without effect.” Mut. Pharm. Co., Inc. v. Bartlett,  570 U.S. 472, 486-87 (2013) (quotation marks omitted); Robards, 677 A.2d at  543 (quotation marks omitted).

Because the CSA preempts the MMUMA when the MMUMA is used  as the basis for requiring an employer to reimburse an employee for the cost of  medical marijuana, the order based on the MMUMA must yield. We therefore vacate the decision of the Appellate Division.

Dissent from Justice Jabar

Here, there is no positive conflict between the CSA and the  MMUMA because there is no state law that requires the employer—or any  person or entity—to possess, manufacture, or distribute marijuana. In other  words, compliance with both the federal law and the Workers’ Compensation  Board (WCB) order is possible: reimbursement does not require the employer  to physically manufacture, distribute, dispense, or possess marijuana, and, as a result, no physical impossibility exists between the federal law and the WCB  order in this case.

Justice Alexander

I am pleased to join Justice Jabar’s thoroughly researched and  carefully written dissenting opinion. I write separately because in the extensive  discussion of the law of preemption, we must not lose sight of the injured  worker whom this opinion is really about.

Gaetan Bourgoin has endured chronic, disabling pain from a  workplace injury he sustained three decades ago. The result of the Court’s  opinion today is to deprive Bourgoin of reimbursement for medication that has  finally given him relief from his chronic pain, and to perhaps force him to return  to the use of opioids and other drugs that failed to relieve his pain and may have  placed Bourgoin’s life at risk.

(Mike Frisch)