Appeals court rules injured worker entitled to workers' comp despite testing positive for marijuana
Can employees who suffer an on-the-job injury and who subsequently test positive for marijuana be eligible for workers' compensation benefits?
Yes, but it's a high hurdle to overcome. Under Oklahoma's workers' compensation laws, an injury is not compensable if the underlying accident “was caused by the use of alcohol, illegal drugs, or prescription drugs in contravention of a physician's order.” Further, the law generally presumes that such injuries were caused by prohibited substances if the employee either fails a drug test or refuses to take a post-accident drug test. This presumption may be overcome only if the employee proves by clear and convincing evidence that their state of intoxication had no causal relationship to the injury.
An injured Oklahoma worker who tested positive for marijuana recently prevailed in getting benefits awarded to him. What happened?
In Rose v. Berry Plastics Corp., the injured machinist admitted that he had smoked marijuana the night before his arm was crushed in a workplace accident. His employer denied his claim, citing the statute as well as its own policy prohibiting employees from working while impaired. An administrative law judge initially granted the employee's claim, but the Workers' Compensation Commission later reversed that decision. Just this month, the Oklahoma Court of Civil Appeals ruled that the employee was entitled to workers' comp benefits because he successfully overcame the presumption that his marijuana use caused his injury. He specifically pointed to a number of factors, including the fact that no one challenged his testimony that his mind was clear and unaffected at the time of the accident, and that none of his co-workers or supervisors claimed he acted in any way impaired.
Isn't a positive test for marijuana enough to determine impairment?
No. Testing positive for marijuana only indicates the presence of the drug in a person's system. Unlike substance tests for alcohol and most other drugs, currently there is no recognized test that can establish whether an individual is “impaired” or “under the influence.” Neither is there a recognized test that can pinpoint how recently an individual consumed marijuana.
Are injured workers who hold a valid Oklahoma medical marijuana patient license eligible for workers' comp benefits?
The same rules and presumptions apply to license holders who are injured and test positive for marijuana. In order to be awarded benefits after testing positive, they must prove by clear and convincing evidence that their marijuana use did not impair them and did not cause their injuries.
So what should employers do to ensure their employees aren't impaired while on the job?
Under Oklahoma law, employers have the right to prohibit employees — even those with valid medical marijuana licenses — from using or possessing marijuana, alcohol or other drugs while working, so they need to implement and enforce those policies. Second, employers also have the right to discipline or discharge anyone who is working impaired, regardless of the cause of that impairment. Therefore, they should train their managers and supervisors to be vigilant in spotting signs of impairment and documenting their observations and corrective actions. Common signs of impairment can include poor concentration, impaired perception, abnormal behavior, dilated pupils, slow responses or reflexes, abnormal speech patterns, or changes in appearance or demeanor.