Marijuana Use and Workers Compensation in 2015

The use of marijuana, either for medical purposes or as a recreational drug, has become increasingly more common in the recent past. At the present time, despite the fact that marijuana use is still considered illegal under federal law, four states have legalized the recreational use of marijuana, and nineteen others have legalized marijuana use for medical purposes. Other states, while not explicitly legalizing marijuana, have essentially decriminalized its use, making possession of very small amounts a very minor crime. Whether to legalize or decriminalized marijuana use continues to be a hot topic in many states, and is often under consideration in one form or another by state officials somewhere in the nation. Because of these recent changing attitudes towards the use of marijuana, many individuals, even in states where it is not legal, consider it “not to be a big deal”.
However, when it comes to its potential impact on entitlement to Pennsylvania Workers Compensation benefits, the use of marijuana remains a big deal. Employers are permitted to perform drug testing in a variety of circumstances. In certain types of occupations where the use of drugs could be dangerous not only to the individual but to the public, drug testing is often mandatory. In nonunion positions, an employer can adopt a drug testing policy which, if uniformly applied, can be a requirement of both being hired and continued employment. Furthermore, many union contracts now, at the insistence of employers, contain provisions on drug testing. In almost all situations where drug testing is a condition of employment, either through policy or contract, submitting to a drug test after being injured at work is part of the established procedures.
Unlike alcohol, which typically is out of an individual system within a relatively short period of time, drug testing for marijuana use can, depending upon the type of testing and the amount of usage, provide positive results for as long as 120 days after the last use. There are basically four methods of testing for marijuana; urine, blood, saliva or hair testing. An employee who tests positive for the use of marijuana in Pennsylvania can generally be discharged from their employment, and the use of marijuana can even result in the denial of compensation benefits if it is shown that the marijuana use contributed to the work injury occurring.
Even if the marijuana was used in a legal situation, such as while one was visiting a state where recreational use is legal, positive test results for marijuana use following a Pennsylvania work injury can lead to a loss of employment and potentially a loss of workers compensation entitlement. As more and more employers are beginning to require a drug test following the reporting of a work injury, this puts the individual, who has recently used marijuana (either “legally” or illegally) in a very dangerous position. An employee may sustain a legitimate injury, yet be afraid to report it and pursue their otherwise legitimate right to workers compensation benefits for fear of being terminated from their employment due to a positive drug test. In situations where the injury is such that immediate treatment is required, the same employee may have no way out of the drug test, and because of the unfortunate combination of recent marijuana use and a work injury find themselves in a very difficult position.
The best advice for Pennsylvania workers when it comes to marijuana use at the present time under current law is just don’t do it if your employer test for drug use either randomly or following a work related injury.