Smoking Out the Old Ways: Why Federal Law Does Not Preempt Recent State Actions Extending Workers’ Compensation Coverage to Medical Marijuana Costs

Abstract

As the cannabis legal landscape continues to evolve, researchers are increasingly discovering the medical benefits marijuana use has to offer. One medical benefit researchers have discovered is that marijuana can be used as an effective treatment for chronic pain without the same side effects or addiction risks as opioid prescriptions. This, in part, has led some states to extend workers’ compensation coverage to include medical marijuana costs. The coverage extension thus gives injured employees the right to choose medical marijuana over opioids. Unfortunately, some state supreme courts have stripped employees of this right by misapplying preemption doctrine and ruling that the Controlled Substances Act (CSA) preempts the coverage extension. This article argues that the CSA’s statutory text, preemption doctrine and federal case law, and recent actions from all three branches of the federal government support the conclusion that federal law does not preempt the extension of workers’ compensation coverage to medical marijuana costs. The coverage extension stands to offer powerful benefits to states, including improving state labor markets and alleviating the opioid epidemic. Ultimately, the decision to extend workers’ compensation coverage is an inherent right in states’ police powers derived from the Tenth Amendment. Without strong evidence of federal preemption, it should be state legislatures, and not the courts, who decide whether to exclude medical marijuana from workers’ compensation.

Keywords: workers’ compensation, cannabis, medical marijuana, preemption, Controlled Substances Act, police powers, opioid epidemic