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The U.S. Department of Justice says the Supreme Court should dismiss two controversial cases involving medical cannabis reimbursement and workers’ compensation. The agency has cited federal legalization efforts as one reason to let the matter go, noting that a number of bills aimed at cannabis law reform are currently making their way through Congress.

Minnesota Cases Cause Confusion

The cases that the Justice Department (DOJ) is is struggling with concern two Minnesota workers who are seeking reimbursement for medical cannabis that was allegedly purchased to treat injuries sustained on the job. One case involved a dental hygienist who suffered a neck injury while working, another an outdoor equipment dealer who suffered an ankle injury while on the job. Both injured parties received doctors’ recommendations to use medical cannabis as a pain treatment after traditional treatment options proved fruitless.

Minnesota law requires employers and insurance companies to cover workers’ compensation for prescription drugs. Since medical cannabis was legalized there in 2015, both suits argued that purchases of the drug for medical reasons should be covered. Compensation judges in both cases ruled in favor of the injured. However, following appeals, the Workers’ Compensation Court of Appeals determined that it did not have jurisdiction to override federal laws and kicked the cases to the state Supreme Court.

In October 2021, the Minnesota Supreme Court ruled that federal law preempts state law and cannabis could not be included in compensation claims until it was removed from federal scheduling. The court ruled that requiring companies to pay for federally illegal substances would force them to aid and abet the commission of a federal crime. The state Supreme Court reversed the compensation courts’ rulings.

Mish-Mash of Rulings

The cases were once again appealed and were sent on to the U.S. Supreme Court. In February 2022, the court asked the DOJ to weigh in on the matter. The issue at hand was that while the Minnesota court had ruled that requiring compensation for cannabis claims amounted to forced criminal activity, other states’ courts had reached the opposite conclusion.

In a similar case, the New Hampshire Supreme Court ruled in 2019 that compensating marijuana patients did not criminalize insurance companies. The ruling was reinforced in another compensation case in February 2022. In New Jersey, the state Supreme Court ruled that medical cannabis should be compensated by employers, noting that federal agencies have deprioritized cannabis prosecutions in states that have legalized the drug.

New Mexico lower courts have repeatedly upheld requirements for employers to reimburse medical cannabis as part of compensation claims. In 2014 judges ruled in favor of an auto shop worker who was seeking medical cannabis reimbursement, despite appeals from their employer on the grounds that care for the worker’s injuries hadn’t come from a health provider. A year later in 2015, an industrial worker successfully sued for cannabis compensation. Judges in both cases ruled that a medical cannabis card could be considered the “functional equivalent of a prescription.”

In another 2015 case, the state appellate court once again ruled in favor of a medical cannabis patient seeking compensation. In this case, a media company that operates radio stations in New Mexico appealed an injured worker’s request for compensation on the grounds that federal law preempted state law. As in New Jersey, the New Mexico court ruled that federal guidance had instructed Justice Department prosecutors to avoid pressing charges in criminal cannabis cases in states where the drug is legal.

The matter has been raised in at least four state supreme court cases. Half of those cases—ruled over by Maine and now Minnesota—have sided with employers and insurance companies.

DOJ Weighs In

Last week the DOJ advised the U.S. Supreme Court to pass on hearing the two Minnesota cases.

“The petitions in these cases, which present a novel question in a rapidly evolving area of law, do not warrant this court’s review,” the Department of Justice wrote in its brief. “The judgments below are correct for the straightforward reason that when a federal law such as the (Controlled Substances Act) prohibits possession of a particular item, it preempts a state law requiring a private party to subsidize the purchase of that item.”

The agency argued that allowing state laws to override federal laws would undermine the very structure of our nation’s legal system, and suggested waiting for more state supreme courts to make decisions regarding the matter before stepping in, writing, “this Court would benefit from further development of the relevant preemption questions in the lower courts before potentially addressing them itself.”

Notably, the DOJ seemed to nod toward the inevitability of federal cannabis law reform with some strange comments regarding current legislative efforts to pass cannabis reform bills. “Indeed, shortly after the Court issued its invitations in these cases, the House of Representatives passed legislation that would remove marijuana from the CSA’s list of controlled substances altogether,” wrote the agency. “Refraining from taking up the questions presented here thus represents the sounder course at this time.”

The legislation referenced is the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act, which passed in the House in April. Despite the apparent optimism expressed by the Justice Department, it appears unlikely that the bill will be passed into law. Support for the bill has fallen along party lines and Senate Republicans are poised to shoot it down. Senate Democrats are also pushing for a competing legalization bill, the Cannabis Administrative and Opportunity Act (CAOA), which will undoubtedly hamper the MORE Act’s progress by splitting its pool of supporters.