No Reimbursement for Medical Marijuana in Maine Workers’ Compensation and a Subtle Connection to Undocumented Workers

As a Maine workers’ compensation lawyer, I was interested to read the Maine Supreme Judicial Court’s just-issued opinion in Gaetan Bourgoin v. Twin Rivers Paper Co. In the opinion, the Court holds that Twin Rivers is not required to reimburse Bourgoin for medical marijuana used to treat his chronic back pain from a work-related, permanently disabling injury. Bourgoin had previously used opioids for pain management, but found marijuana, lawfully obtained and used under state law, more effective and less secondarily debilitating. Because of the opinion, he will probably be forced to return to opioid consumption, a very unsatisfactory outcome.

The legal basis for the opinion, which the Court repeatedly asserted as “narrow” despite all appearances to the contrary, was that the federal Controlled Substances Act preempted Maine’s medical marijuana law. Characterizing an employer’s requirement to subsidize an employee’s acquisition as a “positive conflict” between federal and state law, the Court concluded that principles of conflict preemption rendered the Maine administrative order unenforceable against Twin Rivers. Of course, the ruling also means that no other Maine employer can be compelled to reimburse an injured worker for medical marijuana expense.

In the real world, parties simply contract around these kinds of obstacles. Because the alternative may be extended-duration use of opioids, with all that goes with that process, if medical marijuana cannot be explicitly reimbursed, the parties will simply find other ways to put the required funds in an injured worker’s hands.  What interests me as a law professor, however, is the analysis by which the Court arrived at its preemption conclusion, because that analysis could carry unintended consequences.

The Court recites that, under Title 18 U.S.C.S. § 2(a), a federal prosecution can be directed against any individual who “commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission.” This provision, argues the Court, “reflects a centuries-old view of culpability: that a person may be responsible for a crime he has not personally carried out if he helps another to complete its commission.” Thus, the argument ultimately concludes, the employer here could have been prosecuted under federal law if it took an “active role” in furtherance of the marijuana offense with the intent of facilitating the offense’s commission. The employer on this reading is provided the Hobson’s Choice of violating state or federal law.

But a violation of federal law hardly seems a foregone conclusion. As the dissent points out, it would be nearly impossible to prove an employer had specific intent to violate federal law, a necessary element for conviction. I, of course, agree with the Court that former federal guidance documents expressing a disinclination to federally prosecute marijuana possession purportedly authorized by state law does not save the state marijuana law from preemption. But imagine trying to prosecute an employer for specific intent to violate federal law where, in the context of a countervailing, authorizing state marijuana law: 1) internal federal documents suggest a (broadly publicized) federal lack of interest in prosecuting; and 2) not a single medical provider, employer, or insurance carrier acting under color of state marijuana laws could be shown to have been prosecuted under the Controlled Substances Act. Could it be said in those circumstances that an employer complying with a state workers’ compensation order to reimburse for medical marijuana possessed specific intent to violate federal law? That strikes me as implausible and, as a former federal lawyer, I would not be happy to prosecute such a case.

Furthermore, how would the broad “aid or abet” formulation laid out by the Court work in the context of, to take one stark example, undocumented workers? Does an employer, merely by complying with a workers’ compensation award in favor of its injured, undocumented worker “aid or abet,” in violation of federal law, e.g., 18 U.S.C.S. § 1325 (illegal entry), or 18 U.S.C § 1542 (providing false information to obtain a passport)? Would the employer thereby possess specific intent to violate immigration laws? Surely, state courts in upholding the lawfulness of workers’ compensation awards have implicitly or explicitly rejected such arguments. Will Maine courts now have difficulty with such cases after Twin Rivers?

A final somewhat obscure preemption problem is discussed in the case. The Controlled Substances Act states that it did not intend 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.” So, states are not forbidden from legislating, regulating, or enforcing in the field of controlled substances. But state law must yield to federal law where there is a “positive conflict” between the two. When does that happen?  The dissenting opinion quoted constitutional scholar Erwin Chemerinsky:

The phrase “positive conflict . . . so that the two cannot consistently stand together” in [the Controlled Substances Act] has been interpreted as narrowly restricting the preemptive reach of the CSA to “cases of an actual conflict with federal law such that ‘compliance with both federal and state regulations is a physical impossibility.”’ Justice Scalia has written that the plain language of [the Controlled Substances Act] states a congressional intent that the CSA preempt only state laws that require someone to engage in an action specifically forbidden by the CSA. As a California appellate court succinctly put it, “mere speculation about a hypothetical conflict is not the stuff of which preemption is made.”

It is not physically impossible to comply with both the CSA and state marijuana laws; nothing in the more liberal state laws requires anyone to act contrary to the CSA. Only if a state law required a citizen to possess, manufacture, or distribute marijuana in violation of federal law would it be impossible for a citizen to comply with both state and federal law. Similarly, if a state were to make state officers the manufacturers or distributors of marijuana, it might well be impossible for those officials to comply with both state and federal law. No state marijuana law, however, has attempted to require state or local officials to violate the CSA in this manner.

In a nutshell, state marijuana laws do not “require,” they “permit,” in the sense that state authorities agree not to prosecute certain marijuana offenses under state law. The laws are passive in a manner that is reminiscent of state laws or practices that permit business (including through awarding of workers’ compensation benefits) to be conducted “around” illegal immigration. In both contexts the situation is created when a paralyzed federal government is simply unable to keep up with evolving facts on the ground within the states. I doubt Twin Rivers will be followed because there is every indication that the preemptive sweep of the Controlled Substances Act is not nearly as broad as the Court contends.

Michael C. Duff