Excerpted from a Duane Morris LLP Blog by Emily Meehan

The U.S. Supreme Court declined to hear two cases challenging Minnesota’s denial of workers’ compensation for medical marijuana used to treat work injuries.

Two Minnesota employees, Susan Musta, who suffered a neck injury while working as a dental hygienist and Daniel Bierbach, who was injured at his job working for an all-terrain vehicle company, were certified as eligible to participate in Minnesota’s medical cannabis program and began using cannabis to treat their pain.

They requested reimbursement for the cost of treatment from their employers pursuant to Minn. Stat. § 176.135, subd. 1 (2020), a Minnesota state law that requires employers to furnish medical treatment as may reasonably be required to treat a work-related injury.

Their employers opposed the reimbursement requests, arguing that paying for someone to possess cannabis is prohibited by federal law, specifically the federal Controlled Substances Act, 21 U.S.C. §§ 801–971 (CSA). Musta and Bierbach argued that, because employers are not required to possess, manufacture or distribute cannabis in contravention of federal law, merely providing workers’ compensation for marijuana is not preempted by the CSA.

Their cases made their way to the Minnesota Supreme Court and presented the following question, “Does the CSA preempt an order under a state workers’ compensation law requiring an employer to reimburse an injured employee for the cost of medical marijuana?” In both instances, the Minnesota Supreme Court said yes, deciding that employers were not obligated to pay for medical marijuana treatment. Musta and Bierbach appealed to the U.S. Supreme Court.

The U.S. Supreme Court invited the U.S. Department of Justice (DOJ) to file a brief before making a decision. The DOJ agreed with the Minnesota Supreme Court that the CSA preempts state law and recommended that the court not take up the cases. It wrote, “The Legislative and Executive Branches of the federal government are best situated to consider any potential tailored measures to address specific instances of interaction between federal and state marijuana laws.”

The U.S. Supreme Court denied Musta and Bierbach’s writs of certiorari, indicating that fewer than four justices believed the legal challenges warranted consideration. By rejecting their cases, the U.S. Supreme Court has chosen not to weigh in on the viability of a workers’ compensation claim for medical marijuana coverage, nor has it taken the opportunity to close the gap between state and federal marijuana policy.