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Marijuana and Job Injuries in Washington State

Marijuana in the workplace raises many issues and gives voice to a wide range of opinion. 

Currently much is being said about federal vs. state law, and the impact of Initiative 502 on our society.

This article will narrowly focus on the issue of workers’ compensation in Washington State and marijuana, and will answer the following questions:

Q. I was hurt on the job, tested positive for THC and was fired. Can my employer do this?

A. Yes.

Initiative 502 and its statutory implementation provides protection from the State for criminal prosecution in certain situations, but not from employment decisions. I-502

The high court in a medical marijuana case, Roe v. Teletech, indicated that the States Medical Use of Marijuana Act does not prevent employers from disciplining nor firing medical marijuana users. That analysis should not change with the passage of I-502.

Keep in mind that in most employment situations in Washington State, your employer doesn’t even need a reason to fire you. Giving them a marijuana related reason won’t change their right to fire you.

 

 

Q. I was hurt on the job and tested positive for THC. Will L&I reject my job injury claim? Does it make a difference if its medical marijuana vs recreational marijuana? 

A. L&I will probably not reject your claim.

Workers injured on the job, should have their claim allowed. Having THC in your system doesn’t change that, even though it’s still illegal under federal law, and even if your employer has a drug free policy.

It is unlikely to make any difference in the analysis when medical vs recreational use is considered.

There is one theory that will support claim rejection however, and that is excess intoxication, where the level of intoxication is so great the workers have effectively removed themselves from the course and scope of their employment. On this excess intoxication issue the courts are likely to look to previous alcohol intoxication cases as they decide this issue.

The Washington State Association for Justice’s Workers Compensation Handbook states:  
Worker intoxication can constitute abandonment of the employment relationship in certain cases…The issue becomes whether the level of intoxication is sufficient to evidence an abandonment of the employment, with relevant factual determinations including the worker’s tolerance for alcohol, demeanor, behavior, and speech immediately prior to the injury. In re Michael Pate, Dec’d., BIIA Dec., 97 1977 (1999). Blood alcohol content alone does not resolve the issue. See, In re Brian Kozeni, Dec’d., BIIA Dec., 63,062 (1983) (blood alcohol content of .16 did not remove worker from course of employment); In re Austin Prentice, BIIA Dec., 50,892 (1979) (blood alcohol content of .24 did not remove worker from course of employment); but see, In re Al Thurlow, Dec’d, BIIA Dec., 20,254 (1967) (blood alcohol content of .29 demonstrated abandonment of employment as supported by lay and medical testimony).

My physician has prescribed medical marijuana to me for the effects of a job injury. Does L&I have to pay for the medical marijuana? 

Maybe.

Current medical aid rules, WAC 296-20-03010, provides that L&I considers payment for drugs when approved by the FDA for the condition prescribed or is prescribed for off label use for a drug supported by published scientific evidence of safety and effectiveness. 

Since the FDA has not approved medical marijuana for any disease or condition, coverage decisions will be dependent upon L&I’s and the courts interpretation of WAC 296-20-02704 which is the  directors criteria used to make a medical coverage decisions. There is room here for good law to be made by administrative regulation, or through the court system. 

 

What’s Next?

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