SCOTUS seeks government's take on workers' medical weed reimbursements

U.S. Supreme Court is seen after it was reported Stephen Breyer will retire, in Washington
U.S. Supreme Court is seen in Washington, U.S., January 26, 2022. REUTERS/Joshua Roberts
  • Supreme Court could consider whether state laws are invalid under federal drug law
  • Justices asked federal government to weigh in
  • State courts are split over the question

(Reuters) - The U.S. Supreme Court on Tuesday asked the solicitor general to weigh in on whether state laws requiring that workers be reimbursed for the cost of medical marijuana to treat on-the-job injuries are preempted by federal drug law.

The court invited the government to file an amicus brief in a case brought by Daniel Bierbach, who was prescribed medical marijuana for an ankle injury he sustained while working for an all-terrain vehicle dealer in Minnesota.

The Supreme Court of Minnesota last October said a state workers' compensation law requiring employers to cover the cost of medical marijuana prescribed for work-related injuries was preempted by the federal Controlled Substances Act (CSA).

The CSA makes it illegal to distribute, possess and manufacture marijuana. The Minnesota court said the state law was invalid because it would force employers to violate the CSA by subsidizing the purchase of marijuana.

A growing number of states including New York, New Jersey and Connecticut require employer reimbursements for medical marijuana, and the top courts in New Jersey and New Hampshire have said those laws are not preempted by the CSA. Several other states including Florida and Massachusetts explicitly prohibit such reimbursements.

Bierbach in a January petition for certiorari told the Supreme Court that the Minnesota law is not preempted by the CSA because it does not require employers to possess, manufacture, or distribute marijuana.

The case is Bierbach v. Digger's Polaris, U.S. Supreme Court, No. 21-998.

For Bierbach: David Frederick of Kellogg Hansen Todd Figel & Frederick

For Digger's: Susan Conley of Arthur Chapman Kettering Smetak & Pikala

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at