Medical marijuana is legal in 14 states. Politicians pandering for votes should account to all working Americans for the unintended consequences of legalization. A simple hypothetical taken from real life is illustrative.
A forklift driver carrying a load of pallets runs into you, a water bottle vendor, breaking your hip, leg, and causing serious and permanent brain damage.
Are you and your family limited to a small Workers’ Compensation recovery?
Answer: No. You will be able to recover Workers’ Compensation from your employer and sue the forklift driver and his company in civil court for a full recovery. Most companies have liability insurance for this.
You demand the forklift operator take a drug test immediately. Result?
Answer: Probably. It is unclear if you can make the demand. If the forklift driver signed a written consent to submit to drug testing as a condition of employment, then refusal to his employer could be grounds for termination. The refusal probably doesn’t come into evidence in a civil case.
The forklift driver consents to the drug test and is positive for marijuana (THC)? Result?
Answer: Depends. The forklift driver has a prescription for medical marijuana to relieve chronic arthritic pain. THC will appear on a test 30 days after use. There is no test, as in alcohol, to determine the level of THC for impairment.
The drug testing consent states that any level of drugs including PCH is grounds for termination? Result?
Answer: Unknown: Absent some impairment testimony termination is in doubt. Absent impairment testimony the presence of THC would probably not be admissible in the civil action depending on the jurisdiction.
The injured water truck driver tests positive for THC. Recovery denied?
Absolutely not. This office has had two similar cases. We argued to exclude the THC test and it was not admitted. The two cases settled for a total of $7M when THC was found in a drug screen at the hospital. However, there was no level of impairment testimony and it was not admissible to the jury.
Advanced Hypothetical: The forklift employee informed his employer previously of the medical marijuana and gave a copy of the prescription that appeared in his personnel file. What do you think?
Law School Exam: The forklift driver had a previous positive test for TCH OTJ after reckless driving of forklift. What happens next?
There are pending cases of workers with medical marijuana prescriptions litigating against disciplinary actions for medical marijuana use. The use of medical marijuana pits conflicting interests of a least four groups against each other:
1. The medical marijuana user-worker who has medical needs, political interests and constitutional rights of privacy,
2. The non user-worker whose safety and constitutional rights of association,
3. The government agencies such as OSHA obligated to enforce a drug free work environment.
4. The employer responsible for workplace safety without violating medical rights,
Politicians who flirt with voters over medical marijuana legalization and pander to the medical marijuana users or conservatives against any legalization should be forced to deal with the harder issues and consider the safety and rights of all workers in the work place.
What do you think? Is this any different than a forklift driver taking another prescription drug that causes a drowsy accident? Please write and tell us and tell us if you are a worker, employer, user, nonuser, etc. No personal info please.
Tags: injured worker drugs, work injury civil recovery, workplace marijuana