Thursday, November 26, 2015

Virginia Workers' Compensation Advanced Lawyers Retreat & Marijuana

Recently, I attended the Virginia Workers' Compensation Advanced Lawyers' Retreat in Richmond, Virginia. The conference was highlighted by a presentation by a VCU toxicologist. One of his points was marijuana could stay in your system for a long time. This of course can cause a problem for many workers who are injured on the job. Many employers will require the injured worker to take an immediate urine test when they are injured. Also, many employers have a zero tolerance level for illegal drugs. As a result, a positive test could easily result in termination of employment due to the violation of the drug policy. But the toxicologist pointed out a positive marijuana test does not prove one is under the influence of marijuana at the time of the accident. So, employers cannot say based on the positive test marijuana "caused" the accident based on the test.

One problem is Virginia Code Section 65.2-306 creates a rebuttable presumption that if one tests positive for marijuana then one is "presumed intoxicated" at the time of the accident. The injured worker can overcome this presumption by clear and convincing evidence that he/she was not intoxicated at the time of the accident.

Thus using marijuana on the job can have two very bad results:

First, you can be fired for violation of the employer's drug policy. This termination can not only forfeit employment it can be used to cut off workers' compensation if you are released to light duty work after an injury. The reason is the employer cannot give you a light duty job because your employment was terminated for violation of the employer's drug policy.

Second, the employer can try to use the violation to deny the medical bills and any compensation for the accident on the grounds the injured employee was "presumed intoxicated" at the time of the accident.

In summary, the VCU psychologist made the point marijuana can stay in one's system for a long time after use. And as a workers' compensation lawyer, I can say a positive test for marijuana can have dire consequences for one's employment and one's workers' compensation claim.

For more information about this or any Virginia workers' compensation problem contact Jerry Lutkenhaus at 1-800-256-8862 or visit my website at