Medical marijuana is coming to Ohio. What impact will this have on compensation for work-related injuries? Will workers compensation cover an injury sustained while taking medicinal marijuana? If you are injured on-the-job, will BWC pay for medicinal weed?
1. Will workers comp cover an injury sustained while high?
No. Ohio law creates a rebuttable presumption that any injury sustained while under the influence of pot – medical or otherwise -- was caused by the worker’s own intoxication and therefore not covered. A rebuttable presumption means that the burden of proof shifts to the worker to dis-prove this presumption – an uphill battle. It is safe to assume that most injury claims sustained while under the influence of marijuana will be denied. This is true regardless of whether the marijuana is recommended by a physician.
2. Will BWC cover marijuana for my work-related injury?
Probably not. In order to get a marijuana prescription, you need a qualifying medical condition. Some conditions – like chronic pain, PTSD, spinal cord injury, and traumatic brain injury – can be work-related. Nevertheless, existing rules provide that drugs covered by BWC are limited to those approved by the FDA and marijuana remains illegal under federal law. Also, BWC-funded prescriptions must be given by a registered pharmacist and medical marijuana will only be dispensed from retail dispensaries.
3. You can still get fired for the use and possession of medical marijuana.
Under Ohio’s new law, an employer retains the right to fire an employee because if his use, possession or distribution of medical marijuana. This bears repeating: an employer can fire you for using medicinal marijuana. Because the ADA (Americans with Disabilities Act) does not protect individuals currently using illegal drugs, an employee can be fired for using medicinal marijuana.
It goes without saying that using dope while working is a no-no. But these rules ignore one fact: a marijuana user will test positive for days or even weeks after use. Unlike alcohol, valid detection for cannabis cannot determine an approximate degree of impairment. These rules ignore this reality and treat our system of compensating injured workers as a branch of the penal code.