Medical marijuana is being legalized in an increasing number of states, which will have an impact on a variety of employment issues, including workers’ compensation. The Supreme Court appears to be considering providing clarity to employers and employees alike regarding payment for medical marijuana in workers’ compensation claims.

Is it a federal law violation?

In February 2022, the Supreme Court requested that the Solicitor General submit an amicus brief regarding whether a carrier of workers’ compensation insurancemedical marijuana representing can it be reimbursed by workers' compensation insurance paying for an injured worker’s medical marijuana is a violation of the federal law under the Controlled Substances Act. This request stems from appeals of two decisions by the Minnesota Supreme Court, for which the Supreme Court may grant certiorari. In Musta v. Mendota Heights Dental Center and Bierbach v. Digger’s Polaris, the Minnesota Supreme Court held that ordering a workers’ compensation insurance carrier to reimburse the cost of medical marijuana violates federal law.

Workers’ comp reimbursement of medical marijuana, by state

If the Supreme Court grants certiorari and makes a ruling on this appeal, it could impact employers nationwide. Currently, 37 states allow the use of medical marijuana; however the legality of reimbursing the cost of medical marijuana in workers’ compensation is widely varied. Six states have mandatory reimbursement laws; six states prohibit reimbursement; and the remaining states either do not require reimbursement or are silent on the matter. Florida and Ohio are among those that prohibit reimbursement; Pennsylvania requires reimbursement; and Illinois is silent on the issue. If the Supreme Court determines that reimbursement is not a violation of federal law, then there may not be any changes to these states’ current laws. However, if reimbursement is determined to violate the Controlled Substances Act, then Pennsylvania and the other five states that require reimbursement will need to revise their laws.

Workers’ compensation is just one of the areas of employment law that is being impacted by the legalization of medical and recreational marijuana. Click here to read our previous posts related to the legalization of marijuana.