The Disruptive Impact of Mary Jane on Workers’ Compensation Claims in the Legal System

Introduction

Joseph Miller has worked for his company for over 10 years, and like many other workers in America, he suffers from chronic pain after years of strain on his back. However, new legislation has passed and has given Joseph an alternate form of medication to relieve his back pain so that he can continue to work and make an honest living. This new medication is medical marijuana, Joseph is quickly registered for proper licensing and follows are regulations of the new legislature. After several weeks of use, his work performance has improved and has changed his mood entirely. Unfortunately, this does not last for long while on duty Joseph is struck by forklift resulting in medical treatment and time off for 2 weeks. Due to this incident, Joseph gets discharged due to his medical marijuana use because under work policy it is presumed, he was under the influence if he tested positive for marijuana, regardless if the accident was not his fault. Joseph is one out of millions of American who have been unjustified by the system. A system that does not evolve with growing America. Like Joseph, living the American dream is not easy and when the average full-time worker pulls in over 8-hour workdays.[1]

With the evolution of medical marijuana in America, it’s essential to understand how this new legislation is affecting not only workers but employers in the workplace and claims made under workers’ compensation. Understanding marijuana’s origin and how states first reacted to these new laws will help understand why workers’ compensation law has not changed. Then we will go through the workers compensation claims process and how it has minimal room for medical marijuana use. This paper will further address the legal standards created to keep up with the medical marijuana movement and case law that have challenged the federal law. It will further expand on how state laws and regulations are changing their policy and testing methods to conform with medical marijuana use. Finally, I will discuss possible solutions that can relieve employers and current workers’ compensation claims.

The History of Medical Marijuana

Marijuana has been traced as far back as 2700 BC in the valleys of Central Asia. [2]The use of marijuana varied, and its use traveled through Europe and India.[3]Marijuana’s effects made it a good treatment for opioid withdrawal, pain, appetite stimulation and nausea relief so in 1850 it was added to the U.S Pharmacopeia.[4]Despite its Medical debut and decades of long-standing for its medicinal effect, marijuana met its first federal roadblock in the 1900s.[5]Marijuana was used for hemp; this use pushed the Marihuana Tax Act.[6]This new law required anyone who sold, acquired, dispensed, or possessed marijuana  to register with the Internal Revenue Service and pay special occupational taxes.[7] Following the act marijuana was removed from the U.S Pharmacopeia.[8] At this time the United States was going through the Great Depression and politics began stigmatizing Mexicans as employment thieves.[9]To fuse this stigma marijuana was linked to Mexican use and labeled as a cause for crimes and violence.[10] By the 1970’s the several states implemented marijuana laws and soon after the Federal Government passed the Controlled Substance Act which labeled marijuana as a schedule I substance.[11] Marijuana’s public opinion has been a yoyo throughout the years, but despite efforts of several political powers it still managed to break strides in the medical community.

Regardless of marijuana’s public perception, in 1996 medical marijuana legislation was passed in California for the first time.[12] This law was the “Compassionate Act” which allowed use of medical marijuana under physician supervision.[13] However, the California legislation did not mention whether employees were guarded by the statute. Shortly following behind were Alaska, Washington and Oregon to pass medical marijuana laws in 1998.[14]Currently there are 34 states including the District of Columbia that have passed the use of marijuana medically. Not only has medical marijuana been passed in a majority of states but recreational use has also been passed. The marijuana movement has been on a roll and it will not be long until other states follow. The use of marijuana has also given states another form of revenue which would make it ideal to change its law. In 2014, within six months of legal retail, marijuana sales have generated $21.8 million in tax revenue plus another $10.1 million in taxes on medical marijuana in that period.[15] In 2016, the Oregon Department of Revenue collected $60.2 million in tax receipts from adult-use cannabis businesses.[16]That was over $40 million more than projected for the first year of legal sales.[17] Regardless of the economic impact, certain states do not budge in this topic. Even with all the regulations of legal marijuana, very few states have mentioned how this affects employees who wish to use medical marijuana and if there are any guaranteed rights to employment.

History of Workers compensation

Workers Compensation emanated from Europe and did not reach the United States shores until the 1900s.[18] Before workers’ compensation was implemented the United States society was struck with the Industrial Revolution.[19] During this era several train tracks and factories were being built therefore resulting in the need of manpower; And with that need thousands of employees were injured while on the job.[20] This led to the request for implementing coverage that would benefit society as a whole. Now workers’ compensation is a well-known benefit provided to employers, but how does it work. Worker’s Compensation is a program run by the states that cover wages, medical treatment, and other benefits for employees who are injured at work.[21] Currently, all 50 states have its program, including the District of Columbia.[22] The majority of the cost of workers’ compensation is paid by the employer and depending on the state, insurance can come from a private company, a state fund or the employer can be self-insured. [23] Federal Employees

are provided coverage through federally funded programs. [24]  The need for workers compensation is tied to benefiting society as a one, its purpose,

. . . “is [the] belief in the wisdom of providing, in the most efficient, most dignified, and most certain form, financial and medical benefits for the victims of work-connected injuries which an enlightened community would feel obliged to provide in any case in some less satisfactory form, and of allocating the burden of the payments to the most appropriate source of payment, the consumer of the product”.[25]

So really Workers Compensation is a social benefit that aids the cost of medical expenses and wages regardless of fault, with the ability to reduce expensive litigation for these costs. Originally the only way an employee could receive any type of compensation was through a tort lawsuit against the employer.[26] However, tort liability is based on fault, this concept did not flow with the mechanics of employee accidents because it automatically established that the employer did something wrong to cause the accident.[27]  Workers’ compensation benefit’s fundamental purpose is to provide social involvement and protection; The proper analysis is based on whether the employee’s injury was related to his work duties.[28] This concept is what is used today in many workers’ compensation claims, but as we see through case law there can be side factors that can affect this analysis such as being under the influence while at work.

Workers Compensation’s fundamental goals include the providing of adequate and punctual monetary benefits to an injured worker regardless of fault; the reduction of unnecessary and expensive litigation; the release of financial burden upon both public and private sector funding of industrial accidents; the added encouragement necessary for employers to upgrade safety equipment and procedures; and the promotion of continued studies to aid in the reduction of industrial accidents and injury.[29]

Legal Standards

Every state has its standards for drug testing in its workers’ compensation laws. Understanding how these statues operate in a court of law can affect the way medical marijuana can be tested for employees who are injured. Some jurisdictions use a proximate cause analysis. For example, in Alabama, proximate cause standard is used; In Parker Hannifin Corp. v. Harell, the employee was injured at work when a machine he was repairing gogt loose.[30] The employee was tested 2 days after the accident but admitted to smoking marijuana to ease the pain after the accident. Another worker had also testified that the employee had no signs of impairment at the time of his accident.[31] The Court found that this was substantial evidence to show that the use of Marijuana was not the proximate cause of the employees’ injuries.[32] This case shows that some jurisdictions require employers to have something more than just a positive drug test, and it can alleviate wrongful discharges when employees are injured and test positive for marijuana when they have a medical subscription for it.

Another standard used in workers’ compensation is the presumption of intoxication, for example, Utah’s workers’ compensation states, “. If an employee tests positive there is a presumption that the alcohol or controlled substance was the major contributing factor that caused the employees injury.”[33] A presumption is “a rule of law which permits a court to assume a fact is true until there is a preponderance (greater weight) of evidence which disproves or outweighs (rebuts) the presumption.[34] Employers will assume that employees are under the influence of marijuana at the time of the accident unless the employee can provide some type of evidence to counter it; This is called a rebuttable presumption. States have approached this rebuttable presumption in different ways, In Kennedy v. Camellia Garden Manor, The employee suffered a ruptured disc when moving a patient onto a chair.[35] When the employee was sent to take a drug test for workers’ compensation, he tested positive for Marijuana.[36] The employee testified that he stopped using Marijuana before being hired and offered testimony from employees stating that the employee did not appear to be intoxicated.[37]The judge also held that the type of accident was not the type caused by intoxication.[38]

Like in Kennedy, the presumption of intoxication can be rebutted by substantial evidence. If an employee can overcome this hurdle, their workers’ compensation benefits will not be denied. Courts have analyzed what type of evidence is enough to rebut this presumption. In Thompson v. Wiltsie Const. Co., Claimant, a boilermaker, sought workers’ compensation benefits after injuring both of his feet in a fall that occurred during the course of his employment. The employee’s workers’ compensation claim was denied because he tested positive for marijuana.[39] The New York court held, that there is a high level of proof required by the employer to prove that an injury was caused solely by intoxication, even when the employee tested positive for drugs after an injury at his workplace. In this case the testimony of the employer supervisor stated he did not notice any impairment and the worker was working for ten hours before the incident occurred, which was enough to overcome the presumption. New York is unique in that its medical marijuana statute does not expressly create employment rights for medical marijuana users, but rather it protects employees indirectly by specifying that users are considered disabled for the state’s disability discrimination law.[40]

In Bice v. Waterloo Indus., Inc., the employee was injured when her hand was caught in a press that she was operating.[41] She was tested on the Monday after the Saturday accident, and there was an indication that the positive drug test might have been caused by substances taken by the employee after the accident but before the drug test.[42] The employee offered testimony by the supervisor and maintenance workers of the machine stating that several other employees had been injured by the same machine before and after her use.[43] The machine was found to have a “double pinch point” that was causing the injuries.[44] The court found that the testimony of the employee’s witnesses and the findings of the Commission was clear that the employee’s accident was caused by the press’s double pinch point which effectively rebutted the presumption.[45]

Courts have allowed testimony of supervisors and other coworkers of the injured employee, but can an employee testify on their behalf? In some jurisdictions, Yes; Louisiana allows worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident.[46] Even this requirement includes corroborating testimony by another employee.

Another legal standard is coupling rebuttable presumption with the proximate cause. Proximate cause is happening which results in an event, particularly injury due to negligence or an intentional wrongful act.[47] Mississippi uses this standard in is workers compensation law which states,

“No compensation shall be payable if the use of drugs illegally, or the use of valid prescription medication(s) taken contrary to the prescriber’s instructions and/or contrary to label warnings, or intoxication due to the use of alcohol of the employee was the proximate cause of the injury, or if it was the willful intention of the employee to injure or kill himself or another.”[48]

In Desert Valley Const. v. Hurley, An employee fell from a scaffolding.[49] When tested for drugs, his results were positive for Marijuana with a high concentration.[50] His workers’ compensation was denied because the presence of a controlled substance created a rebuttable presumption that drugs were the proximate cause of the accident.[51] However, during the appeals process, the hearing officer reversed after determining that the proximate cause of the accident was the scaffolding entering a hole by accident, causing the claimant to fall out.[52] The employer tried to argue that the employee tested with a high-level of marijuana metabolites and therefore the substance use should be a proximate cause of the injury.[53] However, the court stated that if the legislature intended to set a level of impairment for marijuana to conclusively determine causation, the legislature would have done so.[54] Also, the legislature did not include marijuana metabolites in its definition of schedule I drugs.[55]The Supreme Court of Nevada held that evidence supported finding that the sole proximate cause of the employee’s injuries was the movement of the scaffold into a hole, and thus, the employee was entitled to benefits, although he tested positive for marijuana.[56]

The question of proximate causation is generally issues of fact left to the trier of fact to resolve.[57] This means cases that appear to the court must determine what facts are set to be true and based on those facts will determine causation. This is important because finding other reasons for causing the accident can refute the impairment of marijuana.

In Arkansas, an employee who tests positive for drugs can receive workers’ compensation if the injury was a result of an inherent risk of the job.[58] A case that reflects this is Grammatico v. Indus. Comm’n; The employee, in this case, broke his wrist and knee after falling from 42-inch-high stilts while walking through a cluttered area of the job site. He was working on the stilts for several hours and had done so before.[59] He was denied worker’s compensation benefits after a positive drug test result and his admitting he had used marijuana and methamphetamine the previous weekend. The Arkansas Constitution adopted a no-fault scheme, as long as both legal causation and medical causation are shown.[60] Legal causation is defined as arising out of employment and medical causation as the employment accident caused the injury.[61] The court struck down the workers compensation provision because it worked in a way to re-define legal causation as fault.[62] The Court found that falling from the stilts is an inherent risk of the job, and reinstituted workers compensation benefits.[63] As you continue to notice hurdling through these standards is not the only problem courts have had to has out.

Discrimination in the workplace

The cases above are examples of how legal standards were created to promote justice in the workers’ compensation field. Generally, these analyses work with any type of intoxication. However not all legal standards can prevent injustice. The real question is how can an individual be discharged for following a state law? The Federal American with Disability Act (ADA) shields  people with disabilities that require legal prescriptions drugs from being discriminated against.[64] However, the ADA does not cover medical marijuana users because marijuana remains illegal federally.[65] Regardless of the ADA, states have still implemented their disability discrimination laws which may coincide with medical marijuana laws. Depending on the state, employees are tested for drugs like medical marijuana can cause discrimination in the process. Although employers do have a duty to maintain a safe workplace, they also have a responsibility not to discriminate against people with disabilities. Testing for marijuana on a person who is properly prescribed opens the gates to unemployment, workers’ compensation denials, and discrimination.

The court in Barbuto v. Advantage Sales and Mktg., LLC, agreed that employers who discharge an employee for testing positive for Marijuana and hold a medical marijuana card may be sued for a disability discrimination claim.[66] In this case, a former employee, who used medical marijuana to treat Crohn’s disease was fired for testing positive for marijuana, she brought an action against her former employer alleging handicap discrimination and unlawful termination.[67] The employer argued that the only accommodation she requested was to continue the use of Medical Marijuana although it remained illegal federally and her discharge was her failure to pass a drug test, not her handicap.[68] The court found that If medical marijuana is prescribed for a disability, the employer would be required to engage in an interactive process to determine if equally effective medications, not in violation of that policy, could be used.[69] If no equally effective medication is available, then the employer would have the burden of showing that allowing the employee’s use of the medication, lawful under state law, would impose an undue hardship on the employer’s business.[70]Courts have favored accommodations for the use of Marijuana for individuals who have a disability and where medical marijuana is the best prescription for treatment.

[71]The court in Barbuto, not only created a connection between medical marijuana and the persons’ disability but geared employers to take that extra step of understanding the need for the use of medical marijuana. It pointed out that there probably isn’t a more suitable medication out there for that employee’s disability.

Not every state takes the above view, several states still allow private employers to discharge employees who test positive for marijuana regardless of a medical condition. Below I will discuss how courts have ruled on this issue. Colorado is considered an ideal spot for marijuana users for its lax recreational use of marijuana, but it still retains strict employment regulations on marijuana. In Steele v. Stallion Rockies Ltd., the employee was discharged for admitting the use of marijuana, he was immediately discharged.[72] The employee argued that he was discriminated against because of his medical marijuana card.[73] The Court found that the “anti-discrimination law does not extend so far as to shield a disabled employee from the implementation of his employer’s standard policies against employee misconduct.”[74] This means that an employer can still set policies against the use of Marijuana even if the employee has a Medical Marijuana card.

The District of Columbia also had a similar approach; In Coles v. Harris Teeter, LLC, a former employee brought an action in District of Columbia court against their employer, alleging wrongful termination under common law and disability discrimination in violation of District of Columbia Human Rights Act (DCHRA).[75] The employee, who suffered from glaucoma and had a valid medical marijuana prescription, failed a drug test and was terminated for violating the employer’s substance-abuse policy. [76]The court held that the Act provided no clear mandate of public policy to require an employer to accommodate the use of marijuana by their employees, instead indicating that the statute, which places restrictions on the use of pre-employment marijuana testing, seemed to leave room for an employer to refuse to hire an employee who tests positive for marijuana on a pre-employment drug test[77]. Accordingly, the court found no clear public policy indicating that an employer was required to accept an employee’s lawful marijuana use.

Off-Duty Use

Employers can regulate the use of drugs on their property or if an employee is on the clock, but can an employer regulate what an employee does off-duty? This has been a combating issue in the medical marijuana industry because marijuana metabolites can stay in someone’s systems for up to thirty days or longer.[78] This concern had also led itself to the courtrooms, and like before depending on the state the answer can go either way. In Coats v. Dish Network, LLC., an employee was discharged for testing positive for marijuana.[79] The employer brought a claim of discrimination against the employer stating that because he had a medical marijuana card he was discharged based on his lawful outside-of-work activities.[80] Colorado has a statute that prohibits discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours.[81] The court interpreted that the statute meant that the activities must be lawful in state law and federal law.[82] The court indicated that because it had decided this case as a matter of federal law, it did not have to decide whether the Colorado Medical Marijuana Amendment made medical marijuana use “lawful” as a matter of state law.[83]

 Unlike Colorado, Idaho courts approached this issue directly with employer policies. In Merriott v. Shearer Lumber Products, an employee was discharged after she tested positive for marijuana.[84] Initially, she was denied benefits but on appeal, the court found that she did not violate the employer’s policy because its policy did not mention off-duty conduct. There was no evidence that the employee was impaired at the time of her drug test.[85] The court agreed and stated that the employer failed to communicate its expectations to the employee.[86] It would not be reasonable for an employer to expect the employee to follow a rule that was told to her.[87] So how does this rule affect workers’ compensation claims?  This could also extend to workers’ compensation policies by putting employees on notice if they are injured they may be denied claims for off-duty use of any drug including medical marijuana.

Employment Drug Testing

Privacy Rights

The 4th Amendment of the United States Constitution provides the right of all persons to be secure from unreasonable searches and seizures.[88] This right is held to apply to the collection of blood, urine, and breath and the subsequent chemical analysis of the specimen and constitutes as a search for the 4th Amendment for Constitutional purposes.[89] However, the United States Constitution only applies to state actors, not private employers.[90] Luckily, for employees, some states have implemented their privacy rights in their state constitution.[91] Depending on the jurisdiction this privacy right may prevent unreasonable drug testing by employers. This issue was raised in California, in Hill v. Nat. Collegiate Ass’n, here students from Stanford University raised a privacy claim against the National Collegiate Athletic Association’s (NCAA) for its drug testing policy of all college athletes.[92] The Court established that a “Privacy initiative of the State Constitution embodies right of action against nongovernmental entities”.[93] This means that employees can raise privacy actions against private employers; However, an employer can outweigh a privacy interest if the employer has a countervailing interest.[94]

Drug Testing for Marijuana

This countervailing interest allows employers to require drug testing in their employment policies. Now that we know that private employers can legally request drug tests from its employees, we will discuss what type of testing can be done. Generally, urine is the most common form of drug testing, but other forms are used too such as saliva, blood, and hair.[95] Determining marijuana impairment through these forms of specimen has been a challenge in the scientific community.[96] It is important to review the difference between cannabis, marijuana, and cannabinoids when it comes to testing for marijuana. Cannabis is the plant that marijuana grows from and marijuana is the leaves or flowers from the plant.[97]There are two types of cannabinoids in the cannabis plant, which s are tetrahydrocannabinol (“THC”) and andeannabidiol (“CBD”).[98] THC is primarily responsible for the psychoactive effects of cannabis, while  CBD does not have psychoactive effects.[99] Marijuana is tested by identifying the chemical compound tetrahydrocannabinol (THC).[100] The amount of THC that is absorbed by a person to cause impairment varies from person to person.[101] Once the THC metabolizes it converts to a non-psychoactive metabolite, THC-COOH.[102] One of the strongest grounds against marijuana testing is urine testing.[103] Urine testing reads the level of THC regardless if it is psychoactive or not and because THC-COOH remains in the system, urine testing does not provide an accurate indication of impairment.[104]

An alternate sample for drug testing in the oral fluid also known as saliva. There are many advantages to saliva testing for instance it is less intrusive, it has the same drug concentration in blood and can be easily processed.[105] When a saliva is administered the specimen is collected by inserting a swab with a collection pad similar to Q-tip for five minutes.[106] If marijuana was smoked traces are left which shows the concentration of THC.[107] In a study saliva samples were tested of 25 people who smoked one and a half to two marijuana cigarettes; The results showed peaks of THC concentration within the first hour and half and still detectable 5 hours later.[108] THC can remain in saliva glands for a total of up to 48 hours.[109] As saliva testing continues to make its debut in employment testing there are still some disadvantages.[110] In order to get an accurate result enough saliva must be collected to administer the test. Employees may even try to alter a test by using a saline solution to rinse out marijuana residue.[111] When comparing the price from saliva testing to urine testing there isn’t much of a big difference. Saliva screening tests can cost as low as $4.15 and up to around $20 per test for a large panel. If those screening tests are negative or instant tests are not utilized, saliva confirmatory tests at a laboratory can cost between $16 and $20 per confirmatory test and then anywhere between $55 and $135 retail price at a collection site.[112] However, saliva testing benefits outweigh the cons because it would be able to detect if an employee used marijuana before an accident.[113] Saliva testing provides results for recent use of marijuana which would be more reasonable to believe that impairment was the actual cause of the accident. Ideally, after an accident, an employee is required to immediately perform a drug test, (after any required medical treatment) so technically there shouldn’t be any opportunity for the employee to try to alter their test.

The least common form of testing is using hair. a single hair strand can be used to test for illicit drugs for up to 90 days.[114] About an inch and a half are used to perform this type of testing.[115] As the hair grows so does the detection of the drug, if the detection is closer to the root the more recent the drug use is.[116] This form of testing is unfavorable to marijuana testing because if someone used marijuana months back they test will still come back positive.

Blood testing is the most invasive type of testing because of the process.[117] Blood tests have a short detection window like saliva/oral fluid which is helpful when necessary to get an instant snapshot of what is in the employee’s system at that exact moment, particularly with extremely recent use.[118] However, when weighed against the level of intrusiveness of the alternatives with similar detection windows (saliva for drug testing and breath and saliva for alcohol), blood really can’t compete.[119] Of all of the federal drug testing regulations in place at the moment, including the Nuclear Regulatory Commission, right now blood tests are only authorized in very limited circumstances under the Federal Railroad Administration regulations.[120] Those situations require several serious factors to be present, and one such condition is a fatality, if that gives some idea how seriously the regulations treat the level of intrusiveness of a blood test.[121] While blood testing for drugs is still used in law enforcement, the FRA, and some non-federally-regulated programs, the widespread acceptance of oral fluid as an alternative is making blood testing nearly obsolete in workplace testing settings.[122]

Medical Marijuana Evolution for the Workplace

Currently, 33 states have legalized medical marijuana, 11 states that legalized recreational marijuana. [123] (see attached map). As more of these states begin to approve this form of medicine, drafting legislation that does not conflict nor affect workplace safety can be tricky. The least protection a medical marijuana act has the least chance an employee can successfully win a worker’s compensation claim denial.[124]

Arkansas medical marijuana law explicitly provides protections for cardholders, the statute states employers cannot take adverse action against a medical marijuana cardholder solely on positive test results. There must be a good faith belief of the employer that the employee possessed or ingested marijuana while on the employer’s premises during working hours, or that the employee was under the influence during working hours (positive test alone will not suffice).[125] This statue has the best of both worlds, it works in a way that disciplines employees for using medical marijuana outside of the regulations and employers are able to maintain their right to discharge an employee if they are impaired on the job. There has yet to be any case law challenging this statute. Maine also prevents employers from penalizing for qualifying patients, but it also includes the right of employers to prevent the use of marijuana on its premises.[126] These states add additional protections for employers. For example, if accommodating a person’s cardholder status would “put the . . . employer . . . in violation of federal law or . . . cause it to lose a monetary or licensing-related benefit under federal law,” the employer is excused from the prohibition.[127] Pennsylvania has also implemented similar protections in its marijuana law which states, “No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.”[128] There are more states that also implemented similar prohibitions in their statutes which include; Arizona, Delaware, Minnesota, Oklahoma, New Jersey, New York, and Nevada.[129]  Every state retains the right to draft their own laws but some statutes are silent on when it comes to employment.  In addition to prohibiting employers from discriminating against an employee for his or her status as a cardholder, these states also prohibit employers from discriminating against employees that test positive for marijuana in a drug test.[130]

With the swing of medical marijuana in full force, states have also come across the issues of recreational marijuana. For one medical marijuana is linked to having a disability which may make it easier to pass through the legislature. But when states begin to implement recreational marijuana, new legislation should be passed to protect people from adverse action for testing positive. Illinois recently passed its legalization of recreational marijuana in June of 2019.[131] This law took effect on January 1, 2020; it states the following concerning employment:

“An employer may consider an employee to be impaired or under the influence of cannabis if the employer has a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, including symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery; disregard for the safety of the employee or others, or involvement in an accident that results in serious damage to equipment or property; disruption of a production or manufacturing process; or carelessness that results in any injury to the employee or others. If an employer elects to discipline an employee on the basis that the employee is under the influence or impaired by cannabis, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.”[132]

This means employers must have sufficient evidence to consider an employee is impaired, it seems to even suggest that drug testing alone is not enough because all these factors cannot be proven by a drug test alone. However, it states that if an employee acts careless and it results in an injury they could be considered impaired. Accidents at work happen all the time and could be caused by a person failing to pay attention, would that be considered careless? Then that same person tested positive for marijuana and would be eligible for workers compensation claims. We do not know the answer to that question because that is something that courts would have to hash out. Due to the recentness of the statute, there has yet to be any case law challenging it.

To avoid this drama entirely some jurisdictions have removed marijuana testing under particular circumstances. Nevada passed specific legislation declaring it is unlawful for an employer to refuse to hire a prospective employee who tests positive for marijuana.[133] Nevada is the only state that has passed this type of legislation.[134]Nonetheless, one municipality has taken the situation into their own hands; New York City passed an ordinance similar to Nevadas, which prevents pre-employment tests for marijuana.[135] There are still exceptions to this ordinance such as persons in safety-sensitive positions.[136] Realistically, no one wants people high while operating dangerous equipment. These jurisdictions may lead with an example to the future but for now, the rules have maintained the same.

Changes in the law are not the only thing making strides in employment testing. In May 2016, The Occupational Safety and Health Administration (“OSHA”) published a new rule addressing retaliatory conduct and electronic reporting of occupational injuries and illnesses. The new rule states;

drug testing policies should limit post-accident testing to situations in which: (1) employee drug use is likely to have contributed to the incident; and (2) for which the drug test can accurately identify impairment caused by drug use.”[137]

This means employers are required to make a factual investigation before an employee is submitted for testing.[138] However, this factor is not guaranteed if a state is required to perform post-accident testing as part of its Drug-Free Workplace Program. Drug-Free Workplace programs provide employers workers compensation discounts. Regardless, OSHA’s implementation of this new rule can be set as a guard to prevent workers compensation denial when in fact the employee was not impaired.

A major win for medical marijuana users is the prospect of workers’ compensation paying for medical marijuana. This was unchartered territory for workers compensation administrations until 2014; In Vialpando v. Ben’s Automotive Serv., An injured employee brought suit against an employer when his medical marijuana reimbursement claim was denied.[139] The Employer argued that the workers’ compensation statute did not give authority to cover medical marijuana because it did not state it in the statute nor was a medical dispensary considered a licensed pharmacist or medical provider.[140] The Employer further argued that requiring the employer to cover medical marijuana reimbursement would be a violation of the federal statute and against federal public policy.[141]The court stated that the statute “requires an employer to provide a worker “reasonable and necessary health care services from a health care provider.”[142] The court continued noting not all medical services required are provided by a medical provider such as a pharmacy, a caregiver, or a supplier.[143]  The only prerequisite is that the service is reasonably necessary.[144] In conclusion, it was further observed the legislative intent of the Compassionate Use Act “to allow the beneficial use of medical cannabis in a regulated system for alleviating symptoms caused by debilitating medical conditions and their medical treatments.[145] Regarding the federal issues, the court held that there was not a conflict between The States Compassion Act and the federal statute, and the employer failed to state which federal statute it would violate.[146] In support of this, the court used the Department of Justices’ list of priorities and outside of those priorities, it would defer to state and local authorities.[147] The court held “Our State Legislature passed the Lynn and Erin Compassionate Use Act “to allow the beneficial use of medical cannabis in a regulated system for alleviating symptoms caused by debilitating medical conditions and their medical treatments.”[148]

New Jersey followed New Mexico with its reasoning in Hager v. M & K Construction; The New Jersey Appellate Division ruled that an employer was required to reimburse its former employee for his marijuana prescription under his workers’ compensation claim.[149] The Court ruled that to deprive the former employee of the only relief of the continuous pain he experienced would deprive the principals of the workers’ compensation system.[150] The court also mentioned that the use of marijuana was justified in light of the ongoing opioid crisis.[151]

Maine took a distinguishable approach to this matter. In Bourgoin v. Twin Rivers Paper Co., LLC, after sustaining a work-related injury, Gaetan H. Bourgoin was issued a certification to use medical marijuana as a result of chronic back pain.[152] He successfully petitioned the Workers’ Compensation Board for an order requiring his former employer, Twin Rivers Paper Company, LLC, to pay for medical marijuana.[153] The Appeals Court approved medical marijuana, the employer appealed to the Supreme Court of Maine.[154] The court found that the Federal Controlled Substances Act (CSA) precluded, due to conflict preemption, application of the Maine Medical Use of Marijuana Act (MMUMA) as a predicate for compelling employers to reimburse claimants for medical marijuana.[155]

Preemption: Federal v. State

From all the cases mentioned a common question is addressed, and it is if Federal Law Preempts State Medical Marijuana Laws; Like most answers, “it depends”. There are three types of federal preemption: express preemption, conflict preemption, and field preemption.[156]Express preemption occurs when a federal statute clearly states an intent to preempt state law or that intent is implied in a federal law’s purpose and structure. [157] Under conflict preemption, federal law preempts state law to the extent that the state law directly conflicts with federal law or with the purposes and objectives of Congress.[158] Field preemption acts to preempt state law when federal law so thoroughly occupies a legislative field that it is reasonable to infer that Congress did not intend for states to supplement it.[159]State courts have ruled on both sides on this matter and if it conflicts with any other state laws. In  Noffsinger v. SSC Niantic Operating Co. LLC,  a prospective employee who was diagnosed with posttraumatic stress disorder (PTSD) and who was a qualifying patient under Connecticut’s Palliative Use of Marijuana Act (PUMA) brought employment discrimination action in state court against the prospective employer, alleging denial of employment based on positive cannabis result during pre-employment screening test in violation of PUMA. The prospective employer argued that the federal law preempted the state law and therefore did not violate any rule. The Court found that the federal statute did not preempt the state statute because it did not prevent an employer from hiring an individual who used medical marijuana. “The main objectives of the CSA were to conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances.[160]The court held;

“The CSA, however, does not make it illegal to employ a marijuana user. Nor does it purport to regulate employment practices in any manner. It also contains a provision that explicitly indicates that Congress did not intend for the CSA to preempt state law “unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.”[161]

The court further held that PUMA was drafted by the legislature with the implied private right action because it provided protections to employees and prospective employees.[162]

A comparison case is Curry v. MillerCoors, Inc., where the employee challenged his discharge because the definition of “lawful” within the state laws, is restricted to only state law.[163] The Court disagrees and reaffirmed its decision in Coats; “lawful activity” for purposes of Colorado’s Employment Law includes both federal and state law because activities conducted in Colorado, including medical marijuana use, are subject to both state and federal law, for an activity to be “lawful” in Colorado, it must be permitted by, and not contrary to, both state and federal law.”[164]

Possible Solutions for Medical Marijuana Testing in the Employment Field

With all the legal jargon, there could be possible solutions outside of the courtroom. Employers can implement a drug testing policy that uses saliva testing, as mentioned before its ability to recognize recent use of marijuana could have a better result in workers’ compensation claims. As long as employees do not use their marijuana medication on the premises or come to work under the influence there shouldn’t be much of an issue with positive testing. Another option could be funding for research in testing potency. Potency can be determined by using a combination of laboratory techniques involving gas chromatography and mass spectrometry also known as GC/MS.[165] This is how the federal government has planned to enforce the 2018 Farm Bill redefinition of hemp which must contain no less than 0.3 percent of THC.[166] However, the practicality of implementing such a testing system has been called into question by some of my colleagues. For example, Texas mirrored the 2018 Farm Bill in 2019 legalizing hemp products with 0.3 percent or less THC and left crime labs scrambling to set up systems to handle the increased demand for laboratory testing.[167] Of the few labs who were capable of testing, most were able to test, but not on all types of marijuana products.[168] As the marijuana industry is still in its infancy, many states don’t have solid regulations in place for cannabis analysis, so trying to better understand the effects of impairment is crucial. Or employees can just remove marijuana from the testing panel all together. But allowing this would be concerning to employers because marijuana causes impairment. Marijuana is the most commonly detected drug found in workplace drug testing.[169] Employers have a duty to provide employees with a safe and healthful workplace. Federal law obligates employers to identify potential workplace hazards and take proactive steps to minimize an employee’s exposure to these hazards.[170]Additionally, marijuana maintaining its Schedule I title under federal law does hold back employers from making changes in their drug-free workplace policy. For example, The Department of Transportation does not make an exception to this policy for medical marijuana users.[171] Many private employers have licensed employees and are bound by federal regulations because of those licenses. Another constraint employers’ come across is the incentive to a drug-free workplace program by giving workers compensation discounts.[172]

The only real means to make any changes with workers’ compensation laws is to change federal law. Withdrawing marijuana from the list is easier said than done. In 2011, The Ending Federal Marijuana Prohibition Act was introduced to Congress which would remove cannabis from federal law and allow states to implement its cannabis legislation.[173] Unfortunately, the bill did not pass, and failed again in 2019.[174] Without this change, employers must operate within legal constraints when establishing workplace drug testing. But employers should acknowledge that not all legal constraints are binding all the time even if it is based on the constitution. Having the ability to change technology, testing, and perception between employees and their work performance may influence legal decision-makers.

Conclusion

Marijuana has marked its footprint into the United States court system, and its fight for acceptance is far from over. This could be a great form of medication for some but denying workers compensation should not be the ultimatum. As courts wrestle this matter, legislation should keep in mind how passing these marijuana laws will affect employers and employees who risk a forfeiture of their rights. Approval of medical marijuana is not meant to prevent employers from conducting drug test of employees. It is a goal to protect employees from being punished for using a medication. With a rocky history, marijuana has been able to shed some light on its benefits and combat through the legal system. With time and development of testing mechanisms impairment detectability may be possible. Or the Federal government will finally realize marijuana is least destructive than opioids and pursue the “real” war on drugs. Until then employers should keep to date with court rulings on workers’ compensation denials based on positive marijuana tests. Hopefully one day, employees like Joseph Miller will no longer have to choose between the best form of relief for their conditions or receiving workers’ compensation benefits.