On Tuesday, February 22, 2022, the United States Supreme Court requested the Solicitor General submit an amicus brief on the issue of whether a workers’ compensation carrier paying for the cost of an injured workers’ medical marijuana is a violation of federal law under the Controlled Substance Act (C.S.A). The Supreme Court is considering whether to grant certiorari of a decision by the Minnesota Supreme Court on the issue. In that case, the Supreme Court of Minnesota held that ordering a workers’ compensation carrier to reimburse the injured worker for the cost of his medical marijuana would be a violation of federal law or the C.S.A. Under the Supremacy Clause of the constitution when there is a direct conflict between state and federal law, federal preempts state law. Should the Supreme Court ultimately grant certiorari and review this case it would certainly be a significant development, as states around the country have split on this issue. Specifically, the Supreme Courts of New Jersey and New Hampshire have found there is no conflict with federal law, while the Supreme Courts of Maine and Minnesota have held that it is a violation of federal law.
In the case of Hager v. M&K Construction, 2021 WL 1380984 (N.J. April 13, 2021) the Supreme Court of New Jersey held there was no conflict with federal law and ordered the carrier to reimburse the petitioner for the cost of his medical marijuana. Specifically, the court found that in order to violate the Controlled Substance Act one must possess, manufacture, or distribute marijuana. Here the carrier was doing none of these activities by reimbursing for the cost after the fact. Moreover, the Court held that the federal budget amended defunding the Department of Justice’s budget for the prosecution of those involved in a state's legal medical industry, has effectively suspended the C.S.A. with regard to medical marijuana enforcement. In contrast, the Supreme Court of Maine and Minnesota found that this would place a carrier in direct violation of the C.S.A. and require them to aid and abet in the commission of a federal crime.
To date, the federal government from the Executive Branch to the Judiciary has seemingly opted to avoid issues relating to state marijuana legalization and a federal conflict. Certainly, should the Supreme Court grant certiorari all eyes will be on them to see how they come down. Estimates have said that on average the office of the Solicitor General takes around four months to reply, and we will keep you updated with any new developments.