FACED WITH conflicting decisions by four state supreme courts, the U.S. Supreme Court looks like it is taking steps to resolve the issue of whether federal law that criminalizes the possession of marijuana should supersede state laws that require employers and workers’ compensation insurers to pay for medical marijuana prescribed to injured workers.

Thirty-seven states have decriminalized possession of marijuana for medical use and 18 have decriminalized recreational use of cannabis.

A decision by the high court be the first step in resolving a number of conflicts that plague the cannabis industry, particularly in terms of banking, insurance and access to financing.

After receiving two petitions that were decided by the Minnesota Supreme Court, the U.S. Supreme Court in late February 2022 requested guidance from the U.S. Solicitor General about how the Supremacy Clause of the U.S. Constitution (which gives supremacy to federal law over state laws) may affect these cases.

There’s been a push for the court to resolve this issue of supremacy as federal authorities have been increasingly lenient about policing any conflicts. Even the most conservative justice on the bench, Clarence Thomas, last year said the federal prohibition on cannabis may no longer be “necessary or proper” in light of how much leeway states have had in enacting recreational and medical use marijuana laws.

While the cases center on whether workers’ compensation insurance carriers should pay for marijuana prescribed to help treat an injured worker, the ruling could have implications for other areas of cannabis law contradictions as the Supremacy Clause is at the center of those cases as well

The Minnesota high court ruled in the two cases at hand — Musta vs. Mendota Heights Dental Center and Bierbach vs. Digger’s Polaris — that federal law trumps state laws and declined insurer reimbursement for medical marijuana for an injured worker. Maine’s Supreme Judicial

Court reached the same conclusion in 2018.

But the supreme courts of New Hampshire and New Jersey ruled that state laws don’t conflict with federal law and said workers’ comp carriers are obligated to pay for medical cannabis prescribed by doctors to injured workers.



Under the federal Controlled Substances Act (CSA), the manufacture, distribution or possession of marijuana is a criminal offense.

In both Minnesota cases, lower courts and the state Workers’ Compensation Appeals Board had ruled that the insurer is responsible for paying for medical marijuana for injured workers, despite the CSA.

But the employers and insurers appealed and the state supreme court overturned the lower courts’ decisions, finding that the CSA preempts the Minnesota workers’ compensation court’s order mandating reimbursement.

Minnesota’s high court found that reimbursing for medical marijuana for injured workers could expose the employer and insurer to criminal liability in both the Bierbach and Musta cases.

The insight

In the Bierbach case, the plaintiffs made a number of compelling arguments in favor of insurers paying for medical marijuana

Arguments in the Bierbach Case

Insurers and employers should not be held accountable because workers’ compensation law does not require them to possess or distribute marijuana, which would violate the CSA.

  • The CSA does not prohibit them from reimbursing for the purchase of cannabis.
  • Insurers and employers are not aiding and abetting in the possession of marijuana because by the time they reimburse, theinjured worker already has the cannabis.
  • Congress has passed appropriations bills on numerous occasions that prohibit the

Department of Justice from enforcing federal marijuana laws in connection with medical marijuana programs that comply with state law.

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