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How does legalized marijuana affect workers’ comp?

The marijuana conversation is complicated because our state and federal laws differ. The passing of Proposition 64 legalized recreational and medical marijuana here in California. However, marijuana is still classified as a Schedule 1 drug under the federal Controlled Substance Act, making it illegal at the federal level.

Complex laws and rules surrounding marijuana use may cause concern for workers. Employees in dangerous professions such as construction or healthcare often get injured. In fact, employees in seemingly safe professions often experience long-term cumulative injuries. They might wonder: can my employer deny compensation due to recreational or medical marijuana use?

Post-accident drug testing

In the past, a positive drug test for marijuana could be cause alone for workers’ compensation denial. In fact, some employers have been known to use post-accident drug testing as a method to retaliate against workers who filed for compensation.

Effective last year, OSHA established new rules to discourage employers from discriminating or retaliating against workers. OSHA prohibits using post-accident drug testing as a way to retaliate against workers who file for compensation. Post-accident drug testing is not prohibited, as long as the employer has a reasonable basis for testing. This means that the employer must have reason to think that the employee’s drug use contributed to their injury.

Under the California Labor Code, compensation can be denied when an injury is caused by intoxication from alcohol or the unlawful use of a controlled substance. This means that an employer must show a link between the injury and intoxication to deny compensation.

Contested claims after a positive test

Workers who use legal marijuana during non-working hours still have traces of the drug in their system weeks after ingesting it. An injured worker who has never been intoxicated at work could face opposition after testing positive for marijuana. This can have an impact on a workers’ compensation claim. The severity of a worker’s injury can also have an impact on how an employer handles the situation. The more expensive the claim, the more reason an employer has to contest it.

As it stands, we do not have a proven ability to measure marijuana intoxication. This means that the outcome of a workers’ compensation claim may differ case by case. If you have been injured at work and are concerned about your ability to receive workers’ compensation, then contact an attorney right away. An attorney specializing in workers’ compensation will better your ability to achieve full compensation.

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