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How could medical marijuana impact workers' comp?

Marijuana is becoming increasingly legalized across the United States. To date, 29 states and Washington DC have legalized marijuana for medicinal purposes, and nine states permit the recreational use of the drug. And the numbers keep rising.

In Georgia, patients with certain medical conditions may legally obtain cannabis oil as treatment. The city of Atlanta voted to decriminalize the drug last October. In addition, a new bill is currently working its way through congress which--if it passes--would legalize marijuana across the state.

With all of these changes to the legal landscape surrounding marijuana, it begs the question: what are the implications of legalized medical marijuana on workers' compensation? In particular, the matter raises two important concerns:

A positive test for marijuana may end your claim before it starts.

Georgia law states that no compensation shall be allowed for an injury or death where the injured worker under the influence of marijuana. If any amount of marijuana is in the employee's blood within eight hours of the accident, there shall be a rebuttable presumption that the accident was caused by the ingestion of marijuana. OCGA 34-9-17 (2017). This means that an injured worker is given the opportunity to provide evidence that while marijuana may have been ingested prior to an accident, it play no part in causing the work accident. If a claimant cannot overcome the "rebuttable presumption" the claimant is not entitled to benefits.

It matters when you are tested?

If the blood test is more than eight hours after the accident, the rebuttable presumption does not apply. Also, how was test completed, the chain of custody of blood test evidence may also be important to show that the results are not reliable.

Will I test positive for marijuana if I use cannabidiol oils (CBD Oils)?

There are many CBD Oils advertised online which claim to effectively treat many conditions. These oils appear to have been produced from either marijuana or from hemp. Both varieties are generally advertised as containing little or no psychoactive properties. Does that mean if you use a CBD Oil and you are injured on the job that you will not test positive for marijuana? There are currently no cases decided by the State Board to deal with this relatively new homeopathic remedy. It is unclear how you might test given the variety of products being offered online.

What is the impact of a drug-free workplace policy?

In states where medical--or recreational--marijuana is legal, does a company still have the right to enforce a drug-free workplace policy? The answer is "yes." In fact, many employers across the nation are turning to regular drug testing at the workplace in an effort to reduce injuries and lower workers' compensation costs. With this condition in place, a worker could be injured on the job, seek medical treatment and be prescribed medical marijuana to treat the pain. When the individual returns to work, they could be asked to take a drug test. If evidence of the drug they were prescribed shows up on the test, they could be fired.

The legalization of medical marijuana is a complex issue--and it is not an issue in a vacuum. It is up to lawmakers to understand the full gamut of ways in which one law affects multiple arenas. In the case of workers' compensation, there must be clear guidelines addressing the interplay between medical marijuana and workers' rights.  Currently, the workers' compensation laws have not yet been modified to deal with this new issue so, be careful. 

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