"Maine Supreme Court holds that administrative orders requiring employers to reimburse employees for expenses related to the purchase or use of medical cannabis are preempted by federal law.”
In Bourgoin v. Twin Rivers Paper Company, LLC – the Maine Supreme Court held that State administrative orders requiring payment for employees’ medical marijuana as treatment for workers’ compensation injuries is preempted by federal law based on marijuana’s classification as a schedule I drug and the federal aiding and abetting statute, which allows for federal prosecutions against principals.
Gaetan Bourgoin was employed by Twin Rivers Paper Company, LLC. After the employee sustained a work-related injury resulting in chronic back pain, the employee was placed on total disability. As an additional consequence of the resultant chronic back pain, the employee was issued a certification to use medical marijuana. Mr. Bourgoin successfully petitioned the Workers’ Compensation Board for an order requiring the employer to pay for the medical marijuana. The Appellate division affirmed that award. On appeal, the Maine Supreme Court addressed the relationship between the federal Controlled Substances Act (“CSA”) and the Maine Medical Use of Marijuana Act (“MMUMA”). The issue was preemption.
The concept of preemption is grounded in the Supremacy Clause of the United States Constitution, which “unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail.” Gonzalez v. Raich, 545 U.S. 1, 29 (2005); see U.S. Const. Art. VI, Cl. 2. The CSA contains the following provision:
No provision of this title shall be construed as indicating an intent on the part of Congress 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. 21 U.S.C. § 903 (emphasis added).
The Maine Supreme Court interpreted this provision as eliminating field preemption, but preserving the supremacy of the CSA where its provisions conflict with State law in a way that makes compliance with the requirements of both impossible. Therefore, the court framed the relevant issue as, in terms of conflict preemption, whether the employer would necessarily be in violation of the CSA if it were to comply with the Board’s order to pay for the medical marijuana that the employee was authorized to use pursuant to MMUMA.
The MMUMA allows “qualifying patients” to possess limited amounts of marijuana for medical use. 22 M.R.S. §§ 2422(9); 2423-A(1). The written certification by a medical provider, which is effective for one year, is based on the professional’s opinion that the “qualifying patient is likely to receive therapeutic benefit” from the medical marijuana used “to treat or alleviate the patient’s debilitating medical condition.” Id. § 2423-B.
Under the CSA, marijuana is classified as a schedule I drug. That means that it falls within a category of substances that, as determined by Congress, have a high potential for abuse, do not have a currently accepted medical use for treatment, and pose unacceptable safety risks even under supervision. See id. § 812(b)(1)(A)-(C) (emphasis added). That means that, with the exception of government approved research projects, federal law bars the use of marijuana—and any other schedule I drug—even in a State with local laws allowing the medical use of the same. Further, although the CSA requires periodic updates to the schedules for controlled substances by the United States Attorney General, marijuana has remained a schedule I drug since the CSA was initially enacted in 1970. Because marijuana is a schedule I drug, the CSA makes it a crime to knowingly or intentionally “manufacture, distribute, or dispense, or process with intent to manufacture, distribute or dispense” marijuana as well as to “knowingly or intentionally” possess it.
Noteworthy is the fact that a federal prosecution can be directed against a “principle,” which is defined as any individual who “commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission.” 18 U.S.C. § 2(a). A person is liable under § 2 for aiding and abetting a crime if, and only if, he or she: (1) takes an affirmative act in furtherance of that offense; (2) with the intent of facilitating the offense’s commission. Rosemond v. United States, 134 S. Ct. 1240, 1245 (2014). The mens rea required for aiding and abetting is an “intent [that] must go to the specific and entire crime charged,” such as “when a person actively participates in a criminal venture with full knowledge of the circumstances constituting the charged offense.” Id. at 1248-49. Therefore, the court explained, were the employer to comply with the administrative order by subsidizing the employee’s use of medical marijuana, it would be engaging in conduct that meets all of the elements of criminal aiding and abetting.
The court concluded by noting that, although State laws such as the MMUMA provide safe harbor from state prosecution, they do not—and cannot—create a “state right to commit a federal crime.” In other words, state law protections have no bearing on federal criminalization or exposure to federal prosecution for the same conduct. Therefore, the administrative order could not be upheld, as compliance with the order on the part of the employer would have been violative of the CSA by causing it to serve as a principle in the distribution and/or possession of marijuana. Accordingly, the judgment was vacated and remanded to the Appellate Division with instructions to vacate the decision of the hearing officer and demand denial of the petition for payment of the medical marijuana.