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Cases to Watch: Bourgoin v. Twin Rivers and Workers’ Compensation

Posted by on Friday, October 6, 2017 in News, Updates.

State marijuana reforms spawn a host of interesting (by which I mean complicated) questions for employers. To date, the question that has drawn the most attention concerns whether employers are required to accommodate employees’ use of marijuana off the job. That issue is discussed in my book at pages 662-681 and on this blog here and here. But another question is drawing increasing attention: Must employers compensate employees for the cost of medical marijuana used to treat a workplace injury—i.e., as part of a workers’ compensation program? My book briefly notes the issue on page 664 n.2.

Maine’s Supreme Judicial Court will soon decide the workers compensation question. Given the lack of decisions addressing the issue — so far, only a few lower state court and administrative decisions have been issued – the opinion of Maine’s highest court is likely to prove influential.

The case, Bourgoin v. Twin Rivers, involves an appeal from the decision of Maine’s Workers’ Compensation Board ordering an employer to compensate an employee for the cost of medical marijuana obtained (pursuant to Maine’s medical marijuana law) to treat injuries sustained on the job. The WCB decision can be found here. The agency relied on another WCB decision, Noll v. Lepage Bakeries, which can be found here. Maine’s workers’ compensation law requires employers to cover all “reasonable and proper” medical expenses related to workplace injury. The agency agreed with the employee that this language covers medical marijuana no less than other drugs.

On appeal, however, the employer has renewed its argument that requiring it to pay for marijuana would violate the federal Controlled Substances Act (CSA). The WCB had rejected the preemption argument, relying on the reasoning of its decision in Noll (linked above), where it found that

“[t]he language of the Controlled Substances Act relied upon by [employer] makes no mention of the facts presented in this case and [employer] cites no persuasive authority for its argument that reimbursing a medical marijuana patient falls within the conduct prohibited by federal law.”

In Noll, the WCB had also noted that

“a Justice Department Memorandum articulating a policy of noninterference with states’ rights regarding medical marijuana further weaken[s employer’s] argument that reimbursement would place it at risk of prosecution for violating federal law.”

Notwithstanding the WCB’s opinion, I think its order does require the employer to violate federal law. In particular, the state is requiring the employer to aid and abet the employee’s acquisition and possession of marijuana. To be sure, this doesn’t mean that the federal government could necessarily prosecute the employer for aiding and abetting. (The elements of aiding and abetting are discussed on pages 571-77 of my book.) After all, because the state is compelling the employer to do something it otherwise seems unwilling to do, the employer probably lacks the mens rea needed for aiding and abetting liability (such compulsion might also raise the defense of duress). But for purposes of preemption, the focus is on the actions and mindset of the state, not the employer regulated by the state. And the state clearly wants to enable the employee to obtain marijuana.

I will post any key developments in the case. In the meantime, the following sources contain some additional coverage and background on workers’ compensation and medical marijuana laws:

  • Portland Press Herald coverage of the Bourgoin case can be found here
  • The National Council on Compensation Insurance has a helpful survey of state workers’ compensation policies regarding medical marijuana here
  • Doug Berman also notes an interesting and relevant research paper here; the paper discusses the relationship between state medical marijuana laws and disability / workers’ compensation claims

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