Election Day 2016 is just over a month away, and the potential for legalized marijuana - both medicinal and recreational - should be weighing on your mind as a business owner. Employee safety is one of the biggest concerns that we hear from small business owners. There is a commitment to safety and a genuine concern for all employees - everyone should return home as healthy as they were when they reported for their shift.
But, what happens if an employee is injured and a post-accident drug screen shows marijuana metabolite levels? Surprisingly, the claim could be allowed by the Ohio Bureau of Workers’ Compensation (BWC). Why? Because during the initial review done by the BWC, they have no way of knowing just how impaired the individual was at the time of the injury. While this can typically be the case for any controlled substances including alcohol, marijuana poses a problem because it stays in the system far longer than other substances, making it difficult to prove the level of impairment.
In order to protect your business, the BWC decision will need to be appealed and this is where an effective post accident drug screen policy is critical— Two important steps to remember - the drug screen needs to be done immediately after the injury and you should also ask supervisors and co-workers if the injured employee was displaying any behaviors that raise suspicion of being impaired.
A copy of the medical records, complete drug testing results (which could be over 100 pages), custody control forms and procedure and policy documentation from the lab will all need to be obtained and then reviewed by an independent medical examiner (IME).
The IME should be able to provide an expert medical opinion as to whether the employee was impaired at the time of the injury. He/she will take several important factors into consideration—was the drug test obtained in the proper fashion? Was it indeed positive? In the case of marijuana, what was the marijuana metabolites level? Did the individual’s behavior or actions suggest some degree of poor judgment or poor reaction time?
Let’s think about an employee in a manufacturing facility who is working with machinery. A belt comes off of a conveyor and the employee attempts to fix it without turning off the machine. His hand is caught, causing a crushing injury.
He is taken to an emergency room for an examination. Company policy requires post-accident drug testing, so a urine drug test is collected upon arrival, which is approximately an hour after the injury occurred. Even though the drug test was positive for marijuana, the BWC allowed the claim for the diagnosed conditions as it didn’t have access to the detailed lab results and specific metabolites level. In order to have a chance at a successful appeal, the employer obtained a file review and provided the IME with the lab documentation and witness statements.
The IME’s expert opinion, based on the marijuana metabolite levels and the employee’s poor judgment and delayed reaction, is that the employee was impaired at the time of injury. While there is never a guarantee of success, obtaining expert medical opinions gives you the best shot of a positive outcome upon appeal.
COSE recommends voting NO on Issue 3 (the marijuana legalization issue) and YES on Issue 2 (which would limit monopolies and oligopolies in Ohio).