Under the State’s worker compensation law, an employer must reimburse an employee for “reasonable and necessary medical care”

New Mexico Court finds Medical Marijuana to be “Reasonable and Necessary Medical Care”- Last month, the New Mexico Court of Appeals declared that employers in New Mexico must reimburse injured employees for the cost of medical marijuana.

Under the State’s worker compensation law, an employer must reimburse an employee for “reasonable and necessary medical care” that is associated with a workplace injury. The employer had argued that they should not be required to pay for medical marijuana because the conflict between state and federal law made medical marijuana an unreasonable medical expense. Their claim was that the legal conflict could subject them to liability for violating, or conspiring to violate, the Controlled Substance Act (CSA).

Federal marijuana enforcement policies are murky at best. The court quoted Congress’ Consolidated and Further Appropriations Act of 2015 (CFA), which dictated that Federal agencies should not use any amount of their budgets interfere with states that are “implementing their own State laws that authorize the use, distribution, possession or cultivation of medical marijuana.” Congress’ clear intent is to allow states to pass laws that contradict the CSA, despite Federal preemption.

Perhaps most importantly, the court interpreted the intent and applicability of both the first and second Cole Memos. This is especially relevant because state laws for recreational and medical marijuana across the nation rely on the Cole memos to form, implement, and enforce their marijuana laws. Before the Cole memos, state governments were hesitant to regulate the marijuana market leading to mistakes such as Gov. Gregoire’s veto of much of Washington State’s medical marijuana law in 2011. Similarly, private institutions such as universities and federally regulated businesses continue to prohibit marijuana use or possession on their property. They fear criminal prosecution or losing their federal funding. If other courts declare the Cole memos and the CFA as a delegation of federal authority to the states to declare their own policies, the ripple effect could affect many federally regulated industries.

The importance the court puts on the Cole memos is surprising because the Cole Memos are merely non-binding guidance to federal prosecutors. They encourage prosecutors to only bring criminal or civil charges for marijuana if the business or person has violated one of eight policy priorities set by the Department of Justice. Those eight priorities are 1) preventing sales to minors, 2) preventing organized crime from receiving sales revenues, 3) preventing transportation of marijuana across state lines, 4) preventing marijuana activity that is used as a pretext for distribution of other illegal drugs, 5) preventing violence or gun possession in connection with marijuana activity, 6) preventing drugged driving, 7) preventing growing marijuana on public land, and 8) preventing the use or possession of marijuana on federal land. The next attorney general or president will have the legal right to change these policies overnight.

The New Mexico court concluded that the employer’s fear of liability under Federal law was “only speculation in view of existing” federal policy, that “the employer had not demonstrated that the order [to reimburse the worker for the cost of medical marijuana] would have required it to violate a federal statute, and that federal public policy was ambiguous in contrast with New Mexico’s clear public policy on marijuana expressed in the Compassionate Use Act.

Read the full case HERE.