States like Colorado, Washington, California, and Maine that have legalized recreational and medical marijuana use have created a potential problem when individuals who use marijuana are injured at work. Just as with alcohol consumption on the job, workers who get injured in the workplace can be tested for pot impairment following the incident.
The problem is alcohol is definitively detectable in specific measures of active presence, but there still has been no development of an accurate electronic potency measuring device acceptable to the court system for marijuana or other THC products.
Furthermore, until the federal restriction on marijuana is lifted, there will probably be no device designed for use in the court systems. What this combination of circumstances presents is a loophole defense for many employers and workers’ compensation insurance companies when trying to avoid an injury claim, even in cases where the use of marijuana has nothing to do with causation of the accident.
Testing for tetrahydrocannabinol, or THC, is primarily achieved by a urine or blood sample that can be requested by the employer or their workers’ compensation insurance company. The test makes no allowance for whether or not the injured worker was “intoxicated” at the time of injury, but merely measures the metabolites in the injured worker's system.
THC deposits can be stored in the fat cells of any user for up 30 days, and any testing on a worker who has used marijuana legally in the past month will likely test positive, even though they may have been 100% sober at the time of the accident causing the injury.
In addition, not all marijuana users' body systems have the same metabolism rate, meaning that determining activity and latency is different for individuals based on the physical makeup. Standardizing any acceptable test will be difficult, if not impossible.
Some states, like Ohio, have stipulated in legislation that the test must occur within 32 hours of the time of the accident, which is still an inaccurate application because THC is usually only actively present in the system for 2-4 hours depending on the grade of marijuana. Coloration in urine tests is how the metabolites are typically determined, with different strength of coloring indicating a higher concentration or activity of the drug.
Employers and insurance companies alike are failing to provide numbers regarding the concentrated presence of the THC metabolite, opting only to claim any presence of THC as proof — and a valid defense — against the approval of a workers’ comp claim.
However, states like Colorado haven’t addressed the problem in statute form, allowing for each case to be evaluated based on this problematic workers’ comp claim avoidance scenario.
The Colorado appellate court ruled in a recent medical marijuana workers’ compensation case that even disabled workers who use marijuana legally cannot only be denied workers’ compensation insurance protection, but they can actually still be fired from their job for using a legally authorized substance. This decision was based on the federal marijuana contraband law that applies to the states that haven’t legalized marijuana products as yet.
Previous workers’ comp claims have been approved on a case-by-case basis and resulted in a 50% reduction in total available benefits for the initially denied claimant workers. This is also a situation that the state legislature will surely be required to address in the near future because of inconsistencies in the law and how it can apply to workers with legal authorization of marijuana usage.
This legal problem for workers across the nation will eventually be a key issue in all states that choose to legalize. And as other states continue to modify laws, the U.S. Supreme Court may need to step in and ensure that injured workers who aren’t affected from using marijuana at the time of their injury can still be allowed to receive some type of workers’ comp benefits.
Meet Colorado Workers' Compensation, Personal Injury
and Insurance Dispute Attorney R. Mack Babcock
Prior to founding The Babcock Law Firm, LLC, R. Mack Babcock spent many years on the other side of workers' compensation, car accidents, personal injury and insurance disputes representing some of the largest insurance companies and corporations in Colorado as an attorney at a midsize insurance defense firm.
Babcock is a member of the Colorado and Denver Bar Associations, the Colorado Trial Lawyers Association and the Workers' Compensation Educational Association. In early 2008, he was elected as the Colorado House District 43 Committee Chairperson for the Douglas County Colorado Democratic Party.
In connection with this position, he is responsible for finding a candidate(s) to run for House District 43, overseeing the campaign(s), organizing volunteers, and also sits on the executive committee for the Douglas County Democratic Party.
Meet Atlanta's Top Workers' Compensation and Work Injury Attorneys
In 2018, two widely respected attorneys joined forces to establish Gerber & Holder Attorneys at Law, an Atlanta-based workers' compensation law firm dedicated to protecting injured workers in Georgia. Together, Ben Gerber and Thomas Holder bring an impressive resume of combined skills, knowledge, resources and experience to work for individuals suffering from a work-related accident such as back and neck injuries, spinal cord trauma, head and brain injuries, construction accidents, truck accidents and other catastrophic injuries.
Both attorneys have an impressive history of success in workers' compensation cases with over 50 years of combined experience practicing law in Georgia. Their accomplishments include recognitions from Super Lawyers, the Georgia Trial Lawyers Association, AV Martindale-Hubbell, Avvo, the Atlanta Bar Association, Knights of the Bar, the Lawyers' Foundation of Georgia and others. Ben Gerber also appeared as a guest on the radio show Atlanta Legal Experts. He's also an active member of the Georgia Workers’ Compensation Claimant’s Lawyers (WCCL) board, Georgia Trial Lawyers Association, Atlanta Bar Association and the Atlanta Volunteer Lawyers Foundation.