Marijuana in the workplace raises many issues and gives voice to a wide range of opinion. Currently the law is being developed on a state by state basis. Little has changed in this state since Washington legalized marijuana.
This article will narrowly focus on marijuana use in a workers’ compensation setting.
Q. I was hurt on the job, tested positive for THC and was fired. Can my employer do this?
A. Yes, your employer may be able to legally fire you.
Employers with drug policies can fire employees who violate their policy. Marijuana is not a right, it is a drug. Employers are not required to look favorably on marijuana use. Federal law still list marijuana as a controlled substance.
Washington is an employment at will state. So in most employment situations in Washington State, your employer doesn’t need a reason to fire you. Giving them a marijuana related reason won’t change their right to fire you.
However drug testing policies must be fair, non-discrimanatory, and not administered in retalization for filing a workers compensation claim.
Q. I was hurt on the job and tested positive for THC. Will L&I reject my job injury claim?
A. L&I should not reject your claim.
Workers injured on the job, should have their claim allowed. Having THC in your system doesn’t change that. The fact that marijuana is still illegal under Federal law doesn’t change that. Neither does your employer’s drug free policy.
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. You would have to be thoroughly blitzed out and act completely crazy to have this happen.
My physician has prescribed marijuana for the effects of a job injury. Will L&I pay for the medical marijuana?
No, L&I will not pay. Their current policy is to not pay or reimburse for medical marijuana.
Current medical aid rules, WAC 296-20-03010, provide:
- That L&I will consider payment for drugs when approved by the FDA for the condition prescribed. The FDA has not approved medical marijuana for any disease or condition.
- L&I will consider payment if prescribed for off label use for a drug supported by published scientific evidence of safety and effectiveness. There is some such evidence. Is there enough?
Coverage decisions in the fuutre will be dependent upon L&I’s and the courts interpretation of WAC 296-20-02704. This 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.
New Jersey in January 2020 in the Vincent Hager v. M&K Construction case upheld a judges decision to OK medical marijuana reimbursed. They took note of the fact that in this case medical marijuana was more effective then either surgery or opioids. If they can do it so can Washington State.