By John Hollick, JD, SFM Chief Defense Counsel

Nationally, many states have been enacting laws regarding medical marijuana, recreational marijuana and hemp-derived substances. Given the prevalence of THC-infused products, employers are asking about the impact of these potentially intoxicating substances on the workers’ compensation system.

For example, in Minnesota consumers can now purchase THC-infused food and beverages. The THC must be hemp-derived, and there are no restrictions on who can sell these products or where they can be sold. Hemp, which is legal on the federal side, has less THC (the substance in marijuana that produces the "high") than the typical marijuana plant. The THC edibles in Minnesota could be consumed as gummies, milk chocolate, snacks or beverages.

This has left employers wondering whether they need to be more concerned about the potential for THC-intoxicated employees to become injured on the job, and if these intoxicated employees would then get workers’ compensation benefits.

Look to state laws

Many states, including Minnesota, have several exceptions to the typical workers’ compensation no-fault system. One exception is the so-called "intoxication defense." Minnesota's law, which was first enacted in 1953, states that if the intoxication of the employee is the proximate cause of the injury, then the employer is not liable for workers’ compensation benefits. The burden of proof, however, is on the employer.

Iowa law states that if an injured employee fails the post-injury alcohol and drug tests, they will then carry the burden of proof to show that they were either not intoxicated, or that the intoxication was not the substantial factor in causing the injury.

In Wisconsin, the law states that if the employee is in violation of an employer's policy regarding alcohol or drug use and that violation causes a work injury, the employee would lose all their rights to workers’ compensation benefits, except medical.

Colorado, which has had medical and recreational marijuana legalization in effect for several years, has one of the tougher laws. It states that if a drug test indicates the presence of a controlled substance, including marijuana, in the employee’s system during working hours, then it is presumed that the employee was intoxicated, and the injury was caused by the intoxication. The employee would then have to rebut this presumption by presenting clear and convincing evidence. Indemnity benefits would be reduced by 50% if the employer prevailed on this defense, but medical benefits would not be affected.

What can employers do?

The best way employers can control work comp costs is to prevent injuries and have solid safety programs. A clear and communicated handbook policy on intoxication is important.

It is also important to report workers’ compensation injuries in a timely manner to your work comp insurer or administrator, and if intoxication could be an issue in causing the work injury, early investigation and identification of witnesses is important. An employer should also consult an attorney if they are considering a drug testing program as some states, including Minnesota, have complex drug testing laws.

This is not intended to serve as legal advice for individual fact-specific legal cases or as a legal basis for your employment practices.

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