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.
The Problem of THC Measurement
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.
State Laws Differ
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.
Colorado Application of Federal Law
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.
