As of late 2022, recreational marijuana use by adults is legal in 19 states. In addition, 37 states, Washington D.C. and Puerto Rico have laws making medical marijuana use legal for specific qualifying conditions. Despite this, the federal Drug Enforcement Agency still classifies the substance as a Schedule I drug under the Controlled Substances Act of 1970, “with no currently accepted medical use and a high potential for abuse.”
In other words, in most places in the country, state and federal laws are saying two different things about marijuana. This confusing and contradictory legal situation makes workers unsure what to do when they have an on-the-job injury.
We recently got a question about this situation:
Reader question: “Would testing positive for marijuana affect my ability to collect workers’ comp in a state where it’s legal? Does federal law trump state when it comes to issues like this? Thanks!”
Answer: It depends on the state where you work – yes, even where marijuana is legal. It also depends on your company’s policies on this matter.
If Marijuana Use Is Legal in My State, What’s the Issue?
Employers are not required to accommodate or accept marijuana use in the workplace – medical or otherwise. This is true even in states where cannabis is legal in some capacity. Workplaces still have the right to enforce zero tolerance drug policies and prohibit employees from using marijuana or being impaired at work.
With this in mind, it’s a good idea to see if your workplace has written policies in your employee manual regarding drug use and/or testing. In some cases, your employer’s insurer can reduce your workers’ compensation benefits by half – or even eliminate them – if a drug test shows alcohol or marijuana in your system at the time of your injury.
IMPORTANT: If the language in your employee handbook or manual is unclear, it is time to contact a workers’ comp attorney.
A workers’ comp lawyer can evaluate your unique case for free. You only pay legal fees if they recover workers’ comp benefits for you. Again, under most state laws, if a drug test finds evidence of marijuana your system during work hours, then they’ll presume you were intoxicated. And further, that the impairment resulted in your injury. As a result, your employer’s insurance carrier could argue that you are responsible for your own medical bills. This is why getting a lawyer’s help is important.
A Legal Gray Area
Laws are changing fast regarding marijuana. Also, positivity rates on workplace testing are rising. In fact, the annual Quest Diagnostics Drug Testing Index recently showed an increase in positive drug test results for both pre-employment and post-accident screening. The positivity rate on drug tests was 4.6% in 2021, up from 3.5% from 2010 to 2012.
Some employers have decided not to test for the drug anymore. In a tight labor market, a few big companies say it’s just not worth the investment. Amazon, for example, dropped marijuana from its employment screening tests in 2021 according to CNN reporting. However, the company did say in its announcement that it would still test employees for drugs and alcohol after workplace accidents. This is relevant because drug test findings can affect eligibility for workers’ compensation benefits. But unlike with alcohol, there’s no reliable way for an employer to determine whether an employee is high at work. An employer’s drug test may come back positive, but that result cannot show when you used cannabis.
In Some States, Medical Marijuana is Covered by Workers’ Comp Benefits
As cannabis becomes more widely legalized, some states are allowing workers’ comp insurers to reimburse injured workers who use the drug during treatment. Six states are on record as requiring workers’ comp insurers to reimburse medical marijuana. They are:
Other states have laws that prohibit reimbursement for medicinal cannabis. However, most U.S. states have no regulations on the matter. If you’re in a state where it’s not required, insurers set the policy. They can decide not to cover it as a medical necessity.
In the six states mentioned above, an injured employee must be using marijuana in accordance with state regulations surrounding medical cannabis access for it to count as a reimbursable expense under workers’ compensation. This means, for example, that in most states, you’d need to have a medical marijuana card to be in compliance. Also, to meet these requirements in many places workers must have a qualifying condition that is not usually seen in workers’ comp claims because they are so serious. These conditions include:
- Most cancers
- Multiple sclerosis
You May Qualify for Legal Assistance
Applying for workers’ comp benefits after an accident and trying to find the best medical treatment at the same time can be stressful. If you need help, talk to an experienced workers’ comp attorney for free over the phone. Having a lawyer file your paperwork makes the process much easier.
Workers’ comp lawyers in every state work on contingency. So, you’ll pay nothing for claim help up front. To speak with a local attorney in our network about your situation and get free claim help by phone, click the button below now.
Laura Schaefer is the author of The Teashop Girls, The Secret Ingredient, and Littler Women: A Modern Retelling. She is also an active co-author or ghostwriter of several nonfiction books on personal and business development. Laura currently lives in Windermere, Florida with her husband and daughter and works with clients all over the world. Visit her online at lauraschaeferwriter.com and linkedin.com.