7. New marijuana tests may offer relief for employers

Marijuana remains a contentious issue in the workers compensation arena, with employers and insurers grappling with the question of compensability after a positive post-accident drug test.  

While lawmakers and the courts continue to pick a side, employers may have the option of determining if someone is “high” without a traditional urine screen. Several new drug tests that test for marijuana’s psychedelic element THC in breath — similar to an alcohol breathalyzer commonly used by state troopers — are expected to hit the market in 2020.  

A story about the new tests was the seventh most viewed workers comp story on Business Insurance’s website in 2019. 

Meanwhile, several states have passed legislation in the past year in an attempt to provide clarity. 

New Jersey made it illegal for employers to take adverse employment actions against workers using medical marijuana solely on their status as a marijuana patient. On the flip side, Rhode Island and Louisiana passed laws stipulating that employers are not required to pay for medical marijuana. 

Courts, too, have had their say on marijuana’s impact on workers comp. On Oct. 16, the Oklahoma Civil Court of Appeals in Tulsa held in Rose v. Berry Plastics Corp. that a worker whose hand was crushed at the plastics plant where he worked is entitled to workers comp, despite the fact he failed his drug screen and admitted to smoking marijuana at home about 10 hours before the incident. The case has been appealed to the Oklahoma Supreme Court. 

A Florida workers compensation judge held in Jones v. Grace Health Center that employers and insurers cannot reimburse for medical marijuana prescribed under workers compensation because it would violate the federal Controlled Substances Act. And the New Jersey Supreme Court has been petitioned to review the state’s medical marijuana law to determine if a medical marijuana user was lawfully terminated after he tested positive for THC in Wild v. Carriage Funeral Holdings Inc.