For those who don’t frequent this blog often, we like to keep apprised of the latest in the legalities of cannabis usage in the workplace, as it is an issue that will be impacting employers on a regular basis going forward, and has shown no signs of going away, with many states legalizing the use of cannabis for recreational purposes.  A couple years ago we wrote about a landmark decision in the world of workers’ compensation, in that an employer was required by a judge to pay for an employee’s recommended treatment of medical cannabis use, which was made legal under Minnesota’s Therapeutic Research Act.

However, a pair of decisions by the Minnesota Supreme Court have brought the employer-sponsored use of medical cannabis to an end.  In Bierbach v. Digger’s Polaris and Musta v. Mendota Heights Dental Center, the Court first found that the conflict between state law legalizing the use of medical cannabis, and a federal law outlawing the use of marijuana, made the issue beyond the subject matter jurisdiction of the Workers Compensation Court of Appeals to decide, and second, that the federal prohibition on cannabis preempted the order made under the state’s workers’ compensation law allowing for the reimbursement for the cost of medical cannabis.

Both cases involved injured workers who were certified as eligible to participate in the state’s medical cannabis program and requested reimbursement for the cost of their treatment from their employers (and their respective insurance companies).  Both employers argued that their payment for medical cannabis essentially amounted to aiding and abetting a federal crime of criminal possession, so they could not be required to pay for the treatment.  After being forced to pay for the treatment by an administrative law judge, the cases were appealed and affirmed by the Workers’ Compensation Court of Appeals, citing a lack of jurisdiction to make a ruling on the question of preemption.

In siding with the employers, the Minnesota Supreme Court held that while “preemption is generally disfavored,” and state law is preempted when “there is a positive conflict between” the Controlled Substances Act and a state law which makes it so the “two cannot consistently stand together.”  Ultimately, the Court found that the employers could not comply with both laws at the same time, so the federal law would preempt the state law allowed for medical cannabis use.  If preemption is to be avoided, it would require the United States Congress to pass and sign “legislation that addresses the preemption issues created by the conflict between federal and state law.”

In a footnote, the Court noted it expressed “no opinion on whether the Controlled Substances Act preempts any component of Minnesota’s medical cannabis program” or “any other form of medical treatment.”  There have also been no decisions on the use of CBD for therapy, or the use of THC “Delta 8,” which is currently legal under federal law.

Until THC is removed from Schedule 1 of the Controlled Substances Act, we will continue to see cases revolving around the issue for many years to come.  It’s important to stay informed on the subject, as there are legal ramifications for employers who are not aware of employee rights with regard to the use of cannabis.  If you or your organization are in need of assistance in dealing with employee cannabis use, contact Wiley Reber Law for legal advice that works.