TLDR: In short, I think the issue of whether requiring insurers/employers to reimburse employees for medical marijuana under state workers compensation laws is pre-empted by federal criminal law is one the Supreme Court will take up. Federal criminal law is a strong federal basis to review a preemption question. I also believe medical marijuana in workers compensation addresses federal criminal law issues in addition to separation of powers issues. All of these factors distinguish medical marijuana from the issue of air ambulances charges in workers compensation that also involves preemption, but the Supreme Court declined to address in 2021.
District Columbia Circuit Court of Appeals Judge and Supreme Court nominee Ketanji Brown Jackson is going through Senate confirmation hearings this week. But if she is confirmed, could one of her first cases involve an issue about workers’ compensation?
I think so.
Last month, the Supreme Court asked the Solicitor General to submit a brief to help them decide to whether to hear an appeal from two Minnesota cases where that state’s high court decided that federal drug laws preempted Minnesota insurers/employers from needing to reimburse injured workers for medical marijuana under their state’s workers’ compensation laws.
Minnesota joined a growing number of states that have split over whether federal drug laws preempt their state workers compensation laws when it comes to medical marijuana. Last spring the United States Supreme Court declined to hear another conflict between state and federal law over air ambulances that split many state and federal jurisdictions.
But after reading the Minnesota decisions, I think it is more likely the Supreme Court will weigh-in over medical marijuana and workers’ compensation. Not only does medical marijuana involve a conflict between state and federal law, it is also implicates criminal law and separation of powers between the executive branch and the executive branch of the federal government.
Criminal law and medical marijuana in workers’ compensation
The split over medical marijuana in workers’ compensation turns on two questions 1) are insurers/employers aiding and abetting illegal activity under federal law by re-imbursing injured workers for medical marijuana through workers compensation and 2) are employers/insurers at risk of breaking the law by re-imbursing workers for medical marijuana.
The first question turns on how to interpret “aiding and abetting” and intent under criminal law. The second question goes to separation of powers issues. While marijuana is illegal under federal law, Congress has passed legislation through spending bills that prohibits the Department of Justice from prosecuting users and distributors of medical marijuana.
Further complicating the analysis is that fact the Department of Justice has shifted its policies about whether they will prosecute medical marijuana users and distributors depending on which party controls the White House.
As stated above, the medical marijuana cases also involve a question between whether federal powers to regulate interstate commerce conflict with state’s 10th Amendment police powers that are the constitutional basis for workers’ compensation. The court declined to ponder that conflict in the Texas air ambulance appeal last year. My hunch is that the Supreme Court believes federal criminal law provides a stronger basis to preempt state workers’ compensation laws than laws regulating air travel
For example, federal courts are moving away from giving deference to how federal agencies that regulate the domestic economy interpret the laws they enforce. But courts are still deferential to the executive branch when it comes to matters of national security. My feeling is that conservative-leaning Supreme Court is going to view federal criminal law as closer to a matter of national security than economic regulation.