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Supreme Court seeks DOJ input on comp coverage for cannabis


The U.S. Supreme Court on Tuesday asked the Department of Justice to weigh in on whether workers compensation insurers should reimburse for medical marijuana.

Specifically, the court is considering requests to review Minnesota Supreme Court decisions holding that employers can’t be compelled to reimburse injured workers for medical cannabis because it would require them to violate federal law.

Before it rules on the matter, the U.S. Supreme Court is inviting the Department of Justice to file its views in Susan K. Musta v. Mendota Heights Dental Center et al. and Daniel Bierbach v. Digger’s Polaris, two October 2021 decisions that held that the Workers’ Compensation Court of Appeal lacks jurisdiction to determine whether the Controlled Substances Act preempts state law, as it would require interpreting federal law.

The Minnesota court concluded that the federal prohibition on possession of cannabis preempts employers from being compelled to reimburse injured workers for the cost of medical cannabis.

Workers compensation judges in both cases had ruled that ongoing congressional appropriation riders prohibiting the DOJ from prosecuting acts that comply with state medical marijuana laws eliminated any risk that employers in both cases would face. The Workers’ Compensation Court of Appeals affirmed both orders, but the state Supreme Court in October reversed.

“Despite action in multiple states relating to medical cannabis and other cannabis-related issues, Congress has never chosen to de-schedule or re-schedule cannabis; it has instead used funding mechanisms to institute temporary, short-term stays of enforcement,” the court said in Musta. “Possession of cannabis remains prohibited by the CSA, and we cannot read these riders as implicit suspensions of a legislative determination of illegality.”

Attorneys filed a petition in November asking the U.S. Supreme Court to review the case, claiming the patchwork of state laws on cannabis, some of which directly contradict the federal prohibition on the drug, requires guidance for lower courts to follow.

“More generally, courts have been bedeviled with difficult questions regarding how to apply state marijuana laws in the shadow of the federal prohibition on marijuana,” the brief reads. “As more and more states legalize and regulate medical and recreational marijuana, cases raising these questions will multiply.”



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