Maine Says: Buy Your Own Marijuana

Bourgoin v. Twin Rivers Paper Co. (SJC Maine, June 14, 2018) Maine has just joined the list of states that preclude worker’s compensation coverage for the cost of medical marijuana used to treat a workplace injury. Bourgoin sustained a workplace injury that caused him to suffer chronic back pain and total disability. After receiving a certification to use medical marijuana, he obtained an order from the Worker’s Compensation Board directing Twin Rivers, his former employer, to pay for the cost of the marijuana. He found that marijuana was more effective and had fewer side effects than the opioid drugs he had been prescribed. Twin Rivers appealed, arguing that the federal Controlled Substances Act (“CSA”) prevented an employer from paying for marijuana even when it is legal under state law. The Maine Supreme Court acknowledged that the CSA expressly disclaimed “field preemption” but held that there was an inevitable conflict between state law that ordered an employer to pay for marijuana and the CSA, which criminalizes marijuana. The court concluded that, if Twin Rivers subsidized the cost of marijuana as a worker’s compensation benefit, it would inevitably be aiding and abetting a federal crime, which is itself criminal activity. The court emphasized that “the magnitude of the risk of criminal prosecution is immaterial in this case. Prosecuted or not, Twin Rivers would be forced to commit a federal crime if it complied with the directive of the Worker’s Compensation Board.” Two justices dissented. This article was written with Meghan Shiner.