One notable result of the November 8, 2022 midterm election was the passing of Missouri Amendment 3, which legalized the recreational use of marijuana for adults over the age of 21, following suit of neighboring Illinois and a handful of other states. Furthermore, more than half of the states have passed laws to decriminalize marijuana and/or permit the use of it for medical purposes.

It is currently unclear exactly how the legalization of marijuana, both medically and recreationally, will affect Workers’ Compensation policies. But even with the relaxed laws, workers who test positive for marijuana could still be denied workers comp benefits if they are injured at work. The attorneys at Padberg Appelbaum Knepper can help you navigate these changes. Continue reading to learn more about how the passing of Missouri Amendment 3 could impact Workers’ Compensation benefits.

Is my employer allowed to tell me not to use marijuana? Can they drug test me?

Because marijuana is still illegal federally, employers are allowed to prohibit employees from using marijuana completely, even if it is legal in the state where they operate. In order to ensure a safe work environment, many employers have policies requiring employee drug testing after a work-related injury. A positive drug test can result in termination, loss of workers’ compensation benefits, or possibly both. 

Other types of policies may be used depending on the nature of the business, such as imposing discipline on employees who test positive for marijuana or prohibiting the use of marijuana during work hours and at the workplace. However, testing for marijuana use “during work hours” is not so straightforward.

These drug tests cannot always determine whether an employee was intoxicated when an accident occurred. Marijuana tests cannot show with any precision when the drug was last used, its strength or potency, or whether the drug was used frequently or infrequently. As such, it is near impossible to tell through drug testing alone whether a person who has ingested marijuana is currently impaired.

Will marijuana use cause me to lose Workers’ Compensation?

Reductions in workers’ compensation in Missouri revolve around whether an injury was sustained “in conjunction” with the use of alcohol or nonprescribed controlled drugs, or if use of drugs was the cause of the injury.

• An injury in conjunction with drug use will result in a 50% benefit deduction. 
• An injury caused by drug use will result in the forfeiture of all benefits.

Because drug tests cannot definitively prove whether employees were impaired by marijuana when they were injured, administrative law judges can look beyond the positive drug test when deciding if an individual was under the influence. Judges may also consider:

• Witness accounts
• Prior behavior of the employee
• The employee’s credibility
• How the employee was acting on the day of the injury

Like many other states that have legalized recreational marijuana use, the current law does not directly address the rights or obligations of employers concerning employees who legally use marijuana. However, Missouri Amendment 3 does have a specific provision which notes driving and operating large machinery while under the influence of marijuana will result in criminal charges. This means using marijuana while working certain jobs (like transportation or construction) could have dire consequences.

In Illinois, there was a major overhaul of the Illinois Workers’ Compensation Act in 2011. The revision places the burden of proving drug or alcohol use was not the cause of a workplace injury on the employee; previously, the employer had the burden of proving that intoxication was the cause of the injury. Under the revised law, your employer’s insurance company could presume being under the influence of marijuana was the cause of your injury if you test positive and deny your workers’ compensation claim.

You can work with an Illinois workers’ compensation attorney to demonstrate that your presumed intoxication was not the “sole proximate cause” of your injury. To help you obtain benefits, your workers’ compensation lawyer will need to prove one of the following:

• You were not impaired when you got hurt.
• Your injuries occurred in the course of your employment, not solely as a result of your intoxication.

If you are able to meet the burden of proof, you may still be eligible to receive workers’ compensation benefits.

Do I have the right to refuse a drug test and should I?

An employer cannot force you to “pee in a cup”, and you can refuse to consent to drug testing. However, refusing can come with consequences. For example, an employer may terminate an employee who does not comply with drug testing policies. In the case of Workers’ Compensation, refusal to submit to a drug test can be viewed with suspicion, and can be cause to deny a claim. 

If you do take a drug test, and it comes back positive for marijuana usage, this is not an automatic denial of your claim. An insurance company or judge will still need to determine whether the injury was caused by drug use, or if it simply occurred in conjunction with drug use. A good lawyer will be able to assemble a timeline and witness testimony to prove when the marijuana was ingested, and at what points in time a claimant was under the influence. Even with a positive test, you could be eligible to receive at least 50% of your claim.

A Workers’ Comp Attorney Can Help

The gradual and non-uniform legalization of marijuana across the country has led to several legal gray areas surrounding Workers’ Compensation, including:

• Should employees receive reimbursement for medical marijuana under Workers’ Compensation when it is prescribed as a treatment?
• Are Missouri employers required to permit medical marijuana use as a “reasonable accommodation” for an employee’s or applicant’s disability?
• Is not doing so disability discrimination?

The answers to these questions are still unclear. The issues and policies surrounding medical marijuana and workplace safety are evolving and nuanced. There is not a one-size-fits all answer on what is and is not allowed, or what is and is not required. If you have questions about your workplace marijuana policies and compliance with those policies, you should contact an experienced Workers’ Compensation attorney.

At Padberg Appelbaum Knepper, we’ve helped countless workers receive compensation for workplace accidents, and will help guide you through this complicated legal process. Reach out today for a free consultation by filling out this form or calling our office at (314) 621-2900.