{"id":198,"date":"2017-10-06T11:12:40","date_gmt":"2017-10-06T16:12:40","guid":{"rendered":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/?p=198"},"modified":"2017-10-06T11:12:40","modified_gmt":"2017-10-06T16:12:40","slug":"cases-to-watch-bourgoin-v-twin-rivers-and-workers-compensation","status":"publish","type":"post","link":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/2017\/10\/cases-to-watch-bourgoin-v-twin-rivers-and-workers-compensation\/","title":{"rendered":"Cases to Watch: Bourgoin v. Twin Rivers and Workers\u2019 Compensation"},"content":{"rendered":"

State marijuana reforms spawn a host of interesting (by which I mean complicated)\u00a0questions for employers. To date, the\u00a0question that has drawn the most attention concerns whether employers are required to accommodate employees\u2019 use of marijuana off the job. That issue is discussed in my book at pages 662-681 and on this blog here<\/a> and here<\/a>. But another\u00a0question is drawing increasing attention: Must employers compensate employees for the cost of medical marijuana used to treat a workplace injury\u2014i.e., as part of a workers\u2019 compensation program? My book briefly notes the issue on page 664 n.2.<\/p>\n

Maine\u2019s 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 \u2013 the opinion of Maine\u2019s highest court is likely to prove influential.<\/p>\n

The case, Bourgoin v. Twin Rivers<\/em>, involves an appeal from the decision of Maine\u2019s Workers\u2019 Compensation Board ordering an employer to compensate an employee for the cost of medical marijuana obtained (pursuant to Maine\u2019s medical marijuana law) to treat injuries sustained on the job. The WCB decision can be found here<\/a>. The agency relied on another WCB decision, Noll v. Lepage Bakeries<\/em>, which can be found here<\/a>. Maine\u2019s workers\u2019 compensation law requires employers to cover all \u201creasonable and proper\u201d medical expenses related to workplace injury. The agency agreed with the employee that this language covers medical marijuana no less than other drugs.<\/p>\n

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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<\/em> (linked above),\u00a0where it found that<\/p>\n

\u201c[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.\u201d<\/p>\n

In Noll<\/em>, the WCB had also noted that<\/p>\n

\u201ca Justice Department Memorandum articulating a policy of noninterference with states\u2019 rights regarding medical marijuana further weaken[s employer\u2019s] argument that reimbursement would place it at risk of prosecution for violating federal law.\u201d<\/p>\n

Notwithstanding the WCB\u2019s opinion, I think\u00a0its order does require the employer to violate federal law. In particular, the state is\u00a0requiring the employer to aid and abet the employee\u2019s acquisition and possession of marijuana.\u00a0To be sure, this doesn\u2019t mean that the federal government could necessarily\u00a0prosecute 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\u00a0defense of duress). But for purposes of preemption<\/em>, the focus is on the actions and mindset of the state<\/em>, not the employer regulated by the state. And the state<\/em> clearly wants to enable the employee to obtain marijuana.<\/p>\n

I will post any key developments in the case. In the meantime, the following sources contain some additional coverage and background on workers\u2019 compensation and medical marijuana laws:<\/p>\n