Hager v. M&K Construction, ___ N.J. ___ (2021). As discussed here, the Appellate Division in this case affirmed the decision of a Workers Compensation judge that the defendant employer was obligated to reimburse the plaintiff employee for the employee’s use of medical marijuana prescribed for chronic pain caused by a work-related accident. The Appellate Division rejected arguments by the employer that, among other things, the federal Controlled Substances Act 21 U.S.C. § 841 (“CSA”), which makes it a crime to manufacture, possess or distribute marijuana, preempts the New Jersey Compassionate Use Medical Marijuana Act (“MMA”), the basis for plaintiff’s reimbursement claim, because it was allegedly impossible to comply with both statutes.
The employer successfully petitioned for review by the Supreme Court. Today, however, in a lengthy, unanimous opinion by Justice Solomon, the Court affirmed the Appellate Division. The Court held that the medical marijuana prescribed for plaintiff was a reasonable and necessary treatment under the Workers Compensation Act. And, as the Appellate Division had also ruled, the CSA did not preempt the MMA. Nor was defendant being subjected to a credible threat of liability under federal law for aiding and abetting or conspiracy.
Justice Solomon’s detailed opinion is well worth reading in full. In it, he went through a careful statutory interpretation analysis (including a discussion of the word “or” in key statutory language), and provided an excellent resource for parties, practitioners, and judges dealing with issues of federal preemption. In doing so, Justice Solomon recognized “the compensation court’s expertise and the valuable opportunity it has had in hearing live testimony,” so that its factfindings and credibility findings were entitled to “substantial deference.” On the other hand, its “legal findings and construction of statutory provisions” invoked de novo review.
The Court’s ruling today was founded on “he recognition that New Jersey law diverges from federal law not just as to medical marijuana but as to its recreational use as well.” But Justice Solomon also rightly observed that federal law is supreme, and that if there were “:expressed or implied” preemption, either “field preemption” or “conflict preemption,” the employer would prevail. The Court’s focus was on conflict preemption, and its analysis showed that there was no such preemption.
Judge Solomon did “acknowledge that our decision here departs from the holdings of other state supreme courts that have come to different conclusions when faced with the precise issue before us –whether state medical marijuana laws are preempted as applied to workers’ compensation orders compelling employers to reimburse workers’ medical marijuana costs.” The Supreme Courts of Maine and Massachusetts had ruled for employers in similar cases.
After oral argument of the present case, though, the Supreme Court of New Hampshire held in favor of the employee, as Justice Solomon said. Supported by the New Hampshire ruling, the conclusion of the Supreme Court of New Jersey in this case, the Court stated, was “consonant with our reading of the relevant federal authorities and our settled principles of preemption analysis and deciphering legislative intent.”
Justice Solomon emphasized the “temporal nature” of the issue in today’s case, and “its dependence on the future acts of Congress.” For today, however, it is a big win for employees for whom medical marijuana is shown to be a reasonable treatment. Employers must reimburse for that.