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California, marijuana legalization, workers' compensation and you

As of Jan. 1, 2018, California joined the list of states that now allow the use of not only medical marijuana but recreational marijuana.

Which means the blowback is just beginning in the working world as employers try to figure out what happens when an employee has THC, the active ingredient in marijuana, in his or her system at work.

Frankly, it's a huge area of unknowns.

In California, the case law that is currently controlling some situations is Ross v. RagingWire. Case law, rather than legislation, allows employers to fire a stoned employee and doesn't require accommodation for the use of marijuana for medicinal reasons. Employers can also drug test new employees and have random drug tests. They can declare a workplace "drug-free."

Since marijuana is still illegal on a federal level, that prescription card or doctor's letter granting an employee the right to use marijuana doesn't grant them the right to use it on the job.

Things get particularly murky, however, when a worker is injured on the job and wants to collect workers' comp despite evidence of marijuana use.

The problem is that THC can remain in the user's system long after any high is gone. A positive drug test doesn't automatically prove that someone who just got involved in an accident on the factory floor is actually high -- even if he or she caused the accident. It just means that sometime in the recent past, he or she used the drug.

Additionally, a worker could be injured through no fault of his or her own and test positive for THC. It's hard to say that he or she should be denied benefits when a badly loaded pallet of goods toppled over and caused the worker's injuries when he or she was just unlucky enough to walk by.

Essentially, if you're a worker in California and you use marijuana for either medical or recreational reasons, you can't be certain how your employer is going to react if you're injured on the job. If your employer tries to deny your workers' comp claim based on the presence of THC in your system, you're well-advised to get an attorney to review your claim.

Source: cbsnews.com, "Working while stoned: How will companies cope?," Ed Leefeldt, Jan. 04, 2018

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