Grace Moore*

The United States Supreme Court seems poised to consider the case of an employee injured in Mendota Heights, Minnesota that could settle a dilemma in employment law that has divided state courts and denied injured workers their employment rights. In Musta v. Mendota Heights Dental Center (“Musta”), the Minnesota Supreme Court determined that the federal Controlled Substances Act (CSA) preempted an order under the Minnesota Workers Compensation Act (MWCA) requiring an employer to reimburse the costs of medical cannabis for an employee who has lived with chronic pain from her work injury for over sixteen years. This reimbursement question has divided the State Supreme Courts who have encountered it. The Minnesota Supreme Court went even further than workers’ compensation in Musta and implicated Minnesota’s medical marijuana antidiscrimination statute, declaring that employers are also not required to provide accommodations for an employee’s state-sanctioned use of medical cannabis. The U.S. Supreme Court and the Department of Justice now have the opportunity to determine the employment rights of injured workers. They could also address the broader untenable tension between the federal prohibition on all marijuana and the majority of state governments that have approved the use of cannabis medically by addressing the schedule status of cannabis under the CSA. The Minnesota Supreme Court has declared that it cannot protect the rights of employees at work who follow state law and use reasonable and necessary means to treat their medical conditions absent federal action, and Minnesotans—and all Americans—living with work injuries and other serious conditions deserve to have their rights protected. The U.S. Supreme Court and the Biden Administration have an opportunity to resolve a state court split that hurts already-injured workers and can seize the chance to change cannabis’ Schedule I status to protect patients and employees across the country.

State-Approved Medical Cannabis Laws at Odds with Federal Prohibitions

Cannabis for medical use was first legalized in California in 1996. Now, thirty-seven states, the District of Columbia, Guam, Puerto Rico and the U.S. Virgin Islands have all legalized medical cannabis. A number of states that have legalized medical marijuana have also adopted antidiscrimination provisions regarding its use, including Minnesota. In the employment context, Minnesota’s antidiscrimination statute provides that an individual’s status as a registered patient on the medical cannabis registry cannot be the basis for hiring, termination, or any other decisions that affect the terms or conditions of employment. However, the statute does not require compliance if doing so would cause an employer to violate federal law or lose federal funding. Despite the majority of states approving of medical cannabis use, marijuana is still classified federally as a Schedule I controlled substance under the CSA, so it remains federally illegal for all uses in the United States.

This disconnect between the federal prohibition against all marijuana and the majority of states’ movements to legalize cannabis for medical—and increasingly recreational—use and protect patients from discrimination has led to countless regulatory quagmires. For workers who were injured on the job and require medical cannabis to treat their conditions, this tension has led to a state court split over whether employers can be required to reimburse the cost of the medical marijuana and what accommodations injured employers can receive. The unresolved conflict between state and federal law has created a murky legal landscape that serves only to hurt injured workers further.

Minnesota Supreme Court Declines to Require Reimbursement, Defers to Legislature

In October 2021, the Minnesota Supreme Court had the chance to choose a side in the emerging split and address the rights of injured workers to receive workers’ compensation reimbursement for their state-sanctioned medical cannabis use. Before Musta v. Mendota Heights (and its companion case Bierbach v. Digger’s Polaris) was decided, six states—including Minnesota—expressly allowed workers’ compensation reimbursement for cannabis. Six states had expressly forbid reimbursement, 14 did not require it, and 10 states as well as the District of Columbia have yet to decide the issue.

In Musta, the Minnesota Supreme Court switched course and determined that state law cannot protect the employment rights of injured workers; employers cannot be forced to reimburse the costs of reasonable and necessary medical marijuana for those who were hurt on the job. Susan Musta was employed as a dental hygienist by Mendota Heights Dental Center when she injured her spine attempting to catch an elderly patient who was falling. For the next 16 years, she sought medical assistance countless times to treat her unrelenting pain, but nothing was effective. Musta was ultimately approved to be placed on the medical cannabis registry. When she requested reimbursement—as was her right under Minnesota’s Workers Compensation Act—her employer agreed that the medical marijuana was reasonable and necessary for her work injury, but they asserted that the CSA preempted an order requiring reimbursement for medical marijuana.

The Minnesota Supreme Court agreed with the employer and denied Musta reimbursement. The court reasoned that it is impossible for employers to comply with both the CSA and the MWCA, as reimbursing the costs of medical marijuana constitutes “aiding and abetting” the possession of marijuana. This would theoretically subject the employer to liability under the CSA. The court considered this “impossibility preemption” and determined that the CSA preempts any such state order. This decision shifted Minnesota onto the side of the state court split that will not protect workers’ rights—even in the face of explicit state support for such rights—absent federal action.

Indeed, the Musta court went even farther than workers’ compensation in denying protections to injured workers. Employees who use medical marijuana to treat their medical conditions are likely not protected by federal anti-discrimination legislation; the Americans with Disabilities Act (ADA) prohibits discrimination based on an individual’s disability, but the argument that discrimination on the basis of medical marijuana use is discrimination on the basis of disability has yet to succeed in court. What protections employees receive, they must get from state antidiscrimination statutes. The Musta court declared that “the state cannot force an employer to facilitate an employee’s unlawful possession of cannabis, either through work accommodations or reimbursement for its purchase” (emphasis added). The court does not explicitly discuss Minnesota’s medical cannabis antidiscrimination statute, though it implicitly answers the question of whether refusing to provide an accommodation for an employee’s use of medical cannabis could constitute discrimination on the basis of the employee’s disability in the negative. The majority declared—though seemingly in dicta—that employers cannot be required to provide accommodations, so they would plainly not consider the refusal to do so as discrimination. The court seemed to signal that the exception in Minnesota’s antidiscrimination statute now likely swallows the rule; employers do not have to comply if doing so would cause them to violate federal law, and the court has chosen a broad interpretation of “aiding and abetting” liability that would allow noncompliance, at least in reimbursement contexts. Employees who are patients legally registered in Minnesota’s medical cannabis program cannot expect the courts to protect their state-supported participation in it.

Justice Chutich, in a strong dissent in Musta, argued that there was no conflict preemption and the majority had an “unduly expansive view of aiding and abetting liability, with the result of  denying injured employees reasonable and necessary medical treatment.” The majority even tacitly acknowledged that their decision hurts injured workers, but they emphasized the court will not uphold medical cannabis provisions in the absence of federal congressional action. The court concludes, “we note the argument by the dissent that preemption here frustrates the intention of the Legislature to make medical cannabis available to patients suffering from intractable pain. We agree that if the result here is not beneficial to the employee, the remedy is for Congress to pass, and the President to sign, legislation that addresses the preemption issues created by the conflict between federal and state law.”

Susan Musta is now hoping the U.S. Supreme Court will hear her case. The Court is being urged to end the state court split that has left injured workers unsure of their protections in the workplace, and an amicus brief has been filed calling for the Court to use this opportunity to estop cannabis’ designation as a Schedule I substance altogether. While Justice Thomas recently criticized  the federal government’s approach to cannabis law in a denial of cert and indicated that “a prohibition on intrastate use or cultivation . . . may no longer be necessary or proper,” it is unclear how the current conservative Supreme Court would rule on a case like Musta.

Conclusion

The Supreme Court seems poised to take action on Susan Musta’s appeal. On February 23, 2022, the Court asked the Department of Justice to file the executive branch’s position on the case. Biden’s Administration now has the chance to weigh in on the rights of patients in a country where the majority of states have expressed their approval of medical marijuana. Workers like Susan Musta must have their employment rights protected, and the thousands of participants in medical marijuana programs must also have their rights vindicated federally. Many Americans have expressed their approval and desire for legal marijuana. Over 30,000 patients are currently enrolled in Minnesota’s medical cannabis program. Though the Minnesota legislature has sought to protect individuals who use medical cannabis to treat their medical condition, the Minnesota Supreme Court and multiple other states have declared they cannot—or will not—protect them in the workplace. The Supreme Court and the Department of Justice must take this opportunity to vindicate the rights of injured workers and solve the untenable tension between state and federal law caused by cannabis’ Schedule I status.

*J.D. Candidate, University of Minnesota Law School Class of 2023, JLI Vol. 40 Staff Member