The Maine Supreme Court has ruled that employers in the state are not required to reimburse employees for their use of medical marijuana under the Maine workers’ compensation system because federal law preempts state law.
This decision vacates a previous Appellate Division ruling in this matter and marks the first time the Maine Supreme Court has been called on to consider the relationship between the federal Controlled Substances Act (CSA) and the Maine Medical Use of Marijuana Act (MMUMA).
The case came about after Gaetan H. Bourgoin sustained a work-related injury and was issued a certification to use medical marijuana for chronic back pain. He successfully petitioned the state Workers’ Compensation Board for an order requiring his former employer, Twin Rivers Paper Company LLC, to pay for the medical marijuana.
Twin Rivers initially opposed the petition, arguing that an order requiring it to pay for Bourgoin’s medical marijuana is barred by the CSA even if his use of medical marijuana were permitted by the MMUMA.
Following a hearing, however, the hearing officer granted Bourgoin’s petition in a written decision issued in March of 2015. Twin Rivers appealed to the Appellate Division, which affirmed the hearing officer’s decision in August of 2016.
The Maine Supreme Court then granted Twin Rivers’ petition for appellate review and concluded that in the narrow circumstances of this case, where an employer is subject to an order requiring it to subsidize an employee’s acquisition of medical marijuana, there is a positive conflict between federal and state law.
As a result, the Maine Supreme Court decided the CSA preempts the MMUMA as applied in this case and vacated the decision of the Appellate Division.
“Prosecuted or not, the fact remains that Twin Rivers would be forced to commit a federal crime if it complied with the directive of the Workers’ Compensation Board,” Maine Supreme Court Associate Justice Jeffrey L. Hjelm stated in the opinion document.
Federal Versus State Law
Nearly half a century ago, U.S. Congress enacted the Comprehensive Drug Abuse Prevention and Control Act of 1970. Subchapter I of the Act constitutes the CSA, which establishes laws related to drug control and enforcement.
The CSA classifies substances subject to that legislation into five schedules that are differentiated based on three factors: their respective potential for abuse, the existence or absence of their currently accepted medical use, and risks they pose even when used under medical supervision, the decision document explained.
Marijuana is classified as a Schedule I drug, which is the category of substances U.S. Congress has determined have a high potential for abuse, do not have a currently accepted medical use for treatment and pose unacceptable safety risks even under medical supervision. This means federal law bars the prescribed use of marijuana and any other Schedule I drug even in a state with local laws allowing the medical use of marijuana.
Although the CSA requires the U.S. Attorney General to periodically update the schedules of controlled substances, marijuana has remained a Schedule I drug ever since the CSA was enacted in 1970, the decision document stated.
Because marijuana is a Schedule I substance, the CSA makes it a crime to knowingly or intentionally “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense” marijuana, as well as to “knowingly or intentionally . . . possess a controlled substance.”
Additionally, a federal prosecution can be directed against a principal, which is defined as any individual who “commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission,” the decision document said.
Therefore, the Maine Supreme Court stated in its decision that if Twin Rivers complied with the administrative order by subsidizing Bourgoin’s use of medical marijuana, it would be engaging in conduct that meets all of the elements of criminal aiding and abetting.
The penalty for violation of the CSA, at minimum, is a mandatory fine of $1,000. It may also include as much as one year of incarceration, with a greater sentence if certain aggravating factors are present, such as a prior conviction for any drug offense.
On the other hand, the Maine Medical Use of Marijuana Act allows a qualifying patient such as Bourgoin to possess a limited amount of marijuana for medical use. The written certification by a medical provider, which is effective for one year, is based on the professional’s opinion that the qualifying patient is likely to receive therapeutic benefit from the medical marijuana used to treat a medical condition.
“These conflicting federal and state laws, and their embodiment of competing policies and underlying conclusions about the efficacy of marijuana as a legitimate therapeutic substance, frame the narrow issue that is central to this case: given this network of statutes, can Twin Rivers be required to pay for Bourgoin’s acquisition and use of marijuana – conduct that is proscribed by federal law but allowed by the state because a MMUMA certification had been issued to him?” Hjelm wrote in the opinion.
Maine Supreme Court Decision
Hjelm went on to state that “compliance with both [federal and Maine law] is an impossibility.”
This is because if Twin Rivers complied with the hearing officer’s order and knowingly reimbursed Bourgoin for the cost of the medical marijuana as permitted by the MMUMA, it would engage in conduct made criminal by the CSA because Twin Rivers would be aiding and abetting Bourgoin in his purchase, possession and use of marijuana, Hjelm wrote in the opinion.
Conversely, if Twin Rivers complied with the CSA by not reimbursing Bourgoin for the costs of medical marijuana, it would violate the MMUMA-based order of the hearing officer.
“Through its enactment of the MMUMA, the Maine Legislature has exempted qualifying patients and other specified individuals from state prosecution that otherwise could arise from the medical use of marijuana,” Hjelm wrote. “The Legislature, however, does not have the power to change or restrict the application of federal law that positively conflicts with state law.”
Associate Justice Joseph M. Jabar wrote in a dissenting opinion, however, that he does not believe the CSA preempts the MMUMA in this case, as there is no state law in Maine that requires the employer to possess, manufacture or distribute marijuana.
“In other words, compliance with both the federal law and the Workers’ Compensation Board order is possible…” he wrote.
He argued that the Maine Supreme Court’s primary legal theory in this case – that because the employer would be aiding and abetting Bourgoin’s possession, the CSA preempts the MMUMA – is unpersuasive because the government would not be able to prove the employer would be acting with the specific intent necessary to establish the offense of aiding and abetting. This is because he believes the employer would not be an active participant in Bourgoin’s use and possession of marijuana and is instead only reimbursing him for his medical expenses as ordered by the WCB.
“I do not agree that mere knowledge constitutes active participation in the commission of a crime…” he wrote, adding that “it is speculative to anticipate a federal prosecution of an employer who reimburses an employee for medical expenses pursuant to a WCB order mandating it to do so.”
That said, the Maine Supreme Court stated that as long as marijuana remains a Schedule I substance under the CSA, an employer ordered to compensate an employee for medical marijuana costs would be required to commit a federal crime defined by the CSA.
“Because the MMUMA requires what federal law forbids, the authority ostensibly provided by the Maine law is ‘without effect,'” the Maine Supreme Court ruled.
It therefore vacated the decision of the Appellate Division and remanded to the Workers’ Compensation Appellate Division with instructions to vacate the decision of the hearing officer and remand for denial of the petition for payment of medical expenses and services.
States that have legalized medical marijuana have taken different approaches when it comes to reimbursement under workers’ compensation. In many sates, reimbursement is being done quietly and on a voluntary basis. Some states have laws explicitly stating that an employer or workers’ compensation insurer is not required to pay for medical marijuana.
In a discussion with Claims Journal, Brian Allen, vice president of government affairs for Mitchell, and Mark Pew, senior vice president of PRIUM, a division of Genex Services LLC, provided insight on workers’ compensation cases involving medical marijuana reimbursement and on the federal government’s marijuana law enforcement.
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