It is undeniable that drug use can make anyone prone to accidents. Regardless of whether marijuana is used within or outside work, medicinally or not, the effect of pot in the body can still lead to devastating accidents in the workplace.
When a worker suffers an injury, employers can require such worker to submit himself in a post-accident drug test. The employer should shoulder the costs of testing, and the procedure must be performed in a facility certified by the National Institute on Drug Abuse (NIDA).
Should the employee’s result come out positive because he was using marijuana medicinally, and has documents to prove the same, the employee is already off the hook. This is a common misconception when an employee fails to consult with a Denver workers’ compensation attorney.
Where the confusion lies
A lot of employees are taking cover in the security blanket of Amendment 64, which legalized marijuana in Colorado. However, this same rule is what allows employers to terminate an employee when the latter uses marijuana.
The fine print in Amendment 64 states that:
“Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace, or to affect the ability of employers to have policies restricting the use of marijuana by employees.”
Other grounds that give employers the right to terminate an employee based on positive drug test results
Aside from Amendment 64, federal laws also allow employers to terminate employees who are positive of marijuana use.
The Federal Motor Carrier Safety Administration regulations recognizes the need for a drug-free transportation industry. Hence, DOT agencies are required to implement drug testing of safety-sensitive transportation employees. This requirement is applicable to every mode of transportation, including trucks and airlines.
Moreover, under the Drug-Free Workplace Act of 1988, when a company has a federal contract, it is required to maintain a drug-free workplace. Thus, a drug-free workplace is a condition in receiving a contract or grant from the Federal government.
When an employee in a DOT-covered or federal-contract covered company uses marijuana, albeit with medical prescription, his employer can terminate him in compliance with federal laws.
How does this affect worker’s comp
If injured workers test positive for marijuana use, it can affect their Worker’s Compensation benefits. And employer may try to argue that the injured worker was under the influence of marijuana and reduce monetary compensation by 50%. If marijuana use is forbidden, the employer could terminate the injured worker and refuse to pay lost wage benefits. However the injured worker would still be entitled to full medical and permanent indemnity benefits.
These kinds of cases get complicated quick, and there are several legal requirements that the employer must follow, and often does not, in order to reduce benefits.
Workers’ compensation laws in Colorado are a ‘no-fault’ system. Hence, employers shall take on the expenses incurred, and employees are guaranteed protection in work-related injuries. If you are using marijuana medicinally, and tested positive for drugs in a post-accident drug test, do not let your employer skip on its obligation to treat the injury you sustained. An experienced Denver workers’ compensation lawyer can help you with the proper documentations in pursuing your claim.
Workers’ Compensation can be challenging, confusing, and very complex especially when an employee medicinally uses marijuana or other drugs. Kaplan Morrell has helped thousands of injured workers since 1997 get the benefits they deserve. Contact us here or call us at 303-780-7329 for your free consultation.