In a case of first impression within the state, the Supreme Judicial Court of Maine, in a 5-2 decision, Bourgoin v. Twin Rivers Paper Co., LLC, 2018 ME 77, 187 A.3d 10 (2018), held that an employer may not be required to pay for an injured worker’s medical marijuana use. Indicating that it was deciding the case on “narrow” grounds, the majority reasoned that there was a “positive conflict” between the federal Controlled Substances Act (CSA) and the Maine Medical Use of Marijuana Act (MMUMA) [Opinion, ¶ 1] and that, under such circumstances, the CSA preempted state law.
Bourgoin suffered a significant, work-related back injury and remains on total disability. Suffering from chronic pain syndrome, Bourgoin sought treatment from a number of pain management specialists and attempted various treatments, including opioids, to deal with his pain. In January of 2012, Bourgoin obtained a medical marijuana certification and since then has used medical marijuana to manage his chronic pain.
Bourgoin sought an order requiring his employer to pay for the medical marijuana treatments. A hearing officer granted Bourgoin’s petition in 2015 and the Appellate Division affirmed. Maine’s high court then granted the employer’s petition for appellate review.
“Positive Conflict” Requirement
Justice Hjelm, delivering the majority opinion, noted the CSA’s special preemption provision:
No provision of this title shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this title and that State law so that the two cannot consistently stand together.
21 U.S.C.S. § 903 (emphasis added by the majority).
Justice Hjelm indicated that, with one exception that is not applicable in the case, federal law bars the prescribed use of marijuana — and of any other Schedule I drug — even in a state with local laws allowing the medical use of marijuana. The justice added that 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” [18 U.S.C.S. § 2(a)]. Citing earlier cases, the Justice Hjelm observed that a person may be responsible for a crime he or she has not personally carried out if he helps another to complete its commission.
Conversion of Right to Use Into a Sword
The justice continued, stating that a “person’s right to use medical marijuana cannot be converted into a sword that would require another party, such as Twin Rivers, to engage in conduct that would violate the CSA” [Opinion, ¶ 24]. Justice Hjelm acknowledged the federal Department of Justice’s 2009 “Ogden Memo,” which assigned low priority to the prosecution of medical-marijuana-based violations of federal drug laws, but advised that such a policy was transitory, as was irrefutably demonstrated by its recent revocation by the Trump administration.
Most importantly, argued the justice, the magnitude of the risk of criminal prosecution was immaterial. Prosecuted or not, the fact remained that the employer would be forced to commit a federal crime if it complied with the directive of the Workers’ Compensation Board. This created a positive conflict between the CSA and the MMUMA.
Justice Jabar, joined by Justice Alexander, dissented. The justice indicated the case for federal pre-emption was particularly weak where, such as in the case of medical marijuana, Congress had indicated its awareness of the operation of state law in a field of federal interest, and had nonetheless decided to stand by both concepts and to tolerate whatever tension there was between them.
Justice Jabar added that there was no positive conflict between the CSA and the MMUMA because there no state law required the employer — or any person or entity— to possess, manufacture, or distribute marijuana. To the dissenting justice, compliance with both the federal law and the Workers’ Compensation Board order was possible: reimbursement did not require the employer to physically manufacture, distribute, dispense, or possess marijuana, and, as a result, no physical impossibility existed between the federal law and the WCB order in this case.
For additional discussion of the interaction between the CSA and state medical marijuana laws, and the issue of reimbursement of injured workers for their expenses related to medical marijuana, see Larson’s Workers’ Compensation Law, § 94.06.