The Impact of THC Testing on Workers' Comp

Timeliness and documentation are foundational

With the current labor shortage, many employers are finding it hard to hire enough employees who don’t smoke a little marijuana, indulge in some gummies or use marijuana for medical reasons. Nearly every employer we encounter has questions about testing and consequences. One of them recently asked about whether a positive THC (tetrahydrocannabinol) or marijuana test affects a Workers Compensation claim. So, we asked our friends at AF Group for some insight.

AF Group is a premier provider of innovative, specialty insurance solutions nationwide. We talked with Assistant General Counsel Elizabeth Reid Dotson. Liz is licensed in Kansas and Missouri and regularly defends Workers Compensation claims. She’s been advising clients on this topic for the past couple of years.

As you might expect, the answer to the marijuana testing and Workers Comp question is not simple or straightforward. And it can differ based on the laws in your state. In many cases, however, if a worker involved in an accident is proven to have been under the influence of marijuana at the time of the accident, you can reduce or deny Workers Comp benefits.

Ability to deny or reduce benefits differs by state

The more conservative states allow for complete denial of a claim even if impairment did not have a role in causing the accident. It simply has to be “in conjunction with” the accident. Others allow for a reduction in benefits due to impairment, even if the impairment did not cause the accident.

Proving impairment is still difficult

Part of the problem in these cases is proving impairment. The testing for marijuana hasn’t been refined enough to show impairment levels as it does for alcohol. A positive drug test for marijuana at a level of 15 ng/ml constitutes impairment under Kansas statutes, for example. But other states’  statutes do not specify a level. No matter which state the employee is in, however, when testing due to an accident, be sure to ask the testing facility to provide the level – not just a positive or negative test. This could be important as you consider your next steps.

Your best defense is a clear policy and process for creating awareness

Like in many other situations, the foundation for any action you take on this subject is your policy. To reduce or deny Workers Comp benefits based on marijuana use, you must have a policy that mandates a drug-free workplace. You also must communicate it well and be able to prove the employee is aware of it. The best way to do that is to require a signed acknowledgment.

Consider carefully how strict you want your policy to be and how you will apply it consistently. You can’t discriminate between how you apply it to someone with a medical condition and someone without. And you really can’t be lenient in some cases and strict in others.

More tips

• Be sure to test the person involved in the accident right away. You should cover this detail in your policy, specifying that you can test based on reasonable suspicion. (Some states require testing within 24 hours of the incident.)
• Also report the Workers Comp claim to your carrier as soon as possible. Delayed reporting can limit your defense options.
• Update your employee handbooks and training regularly, especially when laws change.
• Refresh your communication frequently so you can prove employees are aware.
• Train your supervisors on the signs of marijuana impairment, so they can verify reasonable suspicion.
• Clearly state in your policy what substances are prohibited.
• The Miller Group’s safety director, Aaron Paris, is available to help with safety manuals and procedures.

We appreciate Liz’s insight and hope it’s been helpful to you. We’re always available to talk these issues over and help you connect with the resources you need to protect your employees and your business during these ever-changing times.