As of today, 23 states and Washington, D.C. have legalized pot for medical purposes. The list of ramifications for employers is long and complicated, and new issues seem to crop up every day. One of the many interesting questions has to do with who pays for this “medicine” that is still illegal according to the federal government? Earlier this year, a New Mexico Court of Appeals answered, and their decision might surprise you.
The case was George Vialpando v. Ben’s Automotive Services in Santa Fe. Vialpando injured his back while on the job in 2000 and spent years trying to treat his pain with traditional drugs. His doctor says Vialpando’s pain was extreme… worse than thousands of other patients he’s treated over the years. In 2013, the doctor recommended medical marijuana to ease his suffering. Vialpando got approval from a workers’ compensation judge to have his former employer pay for his new medication.
The company appealed saying it shouldn’t be required to pay for two reasons. First, the Worker’s Compensation Act doesn’t authorize reimbursement for the cost of medical marijuana. Second, they claimed the judge’s order was illegal under federal law because there is no exception for medical marijuana. As far as the Feds are concerned pot is pot and it’s against the law to buy it or use it.
The appeals court rejected both arguments and ruled that an employer must pay for medical marijuana if it is recommended to an injured worker.
Here’s how they arrived at the decision:
The court found that the New Mexico Workers’ Compensation Act doesn’t prohibit a healthcare provider from certifying that an injured worker should receive medical marijuana as part of their treatment plan. As long as a workers’ compensation judge deems it “reasonable and necessary”, the employer has to pay.
The second issue is more complicated, but very interesting. The company used the Constitution’s Supremacy Clause to claim the federal law making marijuana illegal trumps the state law that allows the drug’s use. But, the court found no direct conflict between federal law and the state’s Compassionate Use Act, and said the company didn’t cite any specific law that it was being forced to violate.
The cherry on the top of the court’s ruling was that the Department of Justice (DOJ) recently announced that it will only enforce federal drug laws in eight specific areas:
Preventing the distribution of marijuana to minors
Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels
Preventing the diversion of marijuana from states where it is legal under state law in some form to other states
Preventing state - authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or illegal activity
Preventing violence and the use of firearms in the cultivation and distribution of marijuana
Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use
Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands
Preventing marijuana possession or use on federal property
Outside of these areas, the DOJ will defer to state and local authorities, and you’ll notice none of the areas listed above even touch on medical marijuana. On the other side, New Mexico’s Compassionate Use Act is extremely clear that marijuana can be used under a regulated system to help patients with debilitating medical conditions. The court said Vialpando fits perfectly into those conditions.
The company can ask for a court review, so they are not paying up just yet. But, this situation adds yet another question to the long list of seriously complicated marijuana issues facing employers in the years ahead. We will keep you posted as decisions are made.