Should Workers’ Comp Cover Medical Marijuana?



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The number of states where medical marijuana is permitted is nearing 40, with legal recreational cannabis also becoming more and more widespread.

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Nevertheless, the issue of workers’ medical marijuana compensation for injured employees is being approached from various angles, not unlike the U.S.’s patchwork of cannabis regulations.

The main setback in cases of employees seeking workers’ comp for medical cannabis expenses after being injured on the job is marijuana’s Schedule I status under the federal Controlled Substances Act (CSA).

With states reaching different conclusions on the same question, the U.S. Supreme Court is now asking the top Justice Department lawyer to submit a brief—a notable development in cases that seems to rely on an interpretation of the Supremacy Clause of the U.S. Constitution, Marijuana Moment reported.

RELATED: Managing Medical Marijuana in the Workplace

Medical marijuana in the courts

A pair of medical marijuana compensation cases concerning Minnesota employees were discussed at a private conference on Friday wherein both were regarded as invalid according to a 2021 Minnesota Supreme Court ruling.

In the case of Susan Musta, who filed a petition with the U.S. Supreme Court in November upon the state’s highest court determining that her employer did not need to provide reimbursement for medical cannabis following her injury at a dental center, where she was working.

In a friend-of-the-court brief filed in December by Empire State NORML, the New York City Cannabis Industry Association and the Hudson Valley Cannabis Industry Association, justices were urged to take up an appeal out of Minnesota, using it to settle the conflict between state and federal cannabis laws.

Daniel Bierbach, the protagonist in a similar case, submitted his petition for a writ of certiorari (a process that seeks a judicial review of a lower court decision) months after Musta in January. The state Supreme Court made the same judgment.

While filings in both cases were distributed on February 2 for a Supreme Court conference that was scheduled on February 18, the justices are now asking the Biden administration to weigh in on the issue.

“The Solicitor General is invited to file a brief in this case expressing the views of the United States,” reads the latest entry in the dockets on both cases. 



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