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 lists 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-discriminatory, and not administered in retaliation 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 that the worker has effectively removed themselves from the course and scope of their employment. You would have to be thoroughly blitzed to have this happen.
Pre-Employment Cannabis Testing
Effective 2024, an employer may not refuse to hire someone based on the applicant’s use of cannabis off the job and away from the workplace or based on a drug test that finds non-psychoactive cannabis metabolites. The intent of this new law is to prevent restricting job opportunities based on an applicant’s past use of cannabis.
It is unlawful for an employer to discriminate against a person in initial hiring if the discrimination is based on the person’s use of cannabis off the job and away from the workplace.
This section does not apply to an applicant seeking:
(a) A position requiring a federal government background check
investigation or security clearance
(b) A position with law enforcement as defined in RCW 10.93.020
(c) A position with a fire department, fire protection district, or regional fire protection service authority
(d) A position as a first responder or a dispatcher position with a public or private 911 emergency communications system or a position responsible for the provision of emergency medical services
(e) A position as a corrections officer with a jail, detention facility, or the Department of Corrections, including any position directly responsible for the custody, safety, and security of persons confined in those facilities
(f) A position in the airline or aerospace industries; or
(g) A safety-sensitive position for which impairment while working presents a substantial risk of death. The employer must identify such safety-sensitive positions before the applicant applies for employment.
This law is not a get-out-of-jail-free card for cannabis users. It does not prohibit drug testing on the job or after an accident. See Senate Bill 5123. Employers are still permitted to administer on-the-job or post-accident tests. Employers are still allowed to maintain an alcohol and drug-free workplace.
This bill does not prohibit employment decisions based on drug tests that can screen for psychoactive cannabis metabolites. And the employment protections don’t extend to anyone working in the building or construction trades, or to workers required to undergo federal background investigations.
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 not to pay or reimburse for medical marijuana.
Current medical aid rules, WAC 296-20-03010, provide:
- 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 future will depend upon L&I’s and the court’s interpretation of WAC 296-20-02704. This is the director’s criteria used to make medical coverage decisions. There is room here for good law to be established through administrative regulation or the court system.
In January 2020, New Jersey, in the Vincent Hager v. M&K Construction case, upheld a judge’s decision to approve medical marijuana reimbursement. They took note of the fact that, in this case, medical marijuana was more effective than either surgery or opioids. If they can do it, so can Washington State.
