In Colorado, workers’ compensation is a type of private insurance coverage that employers must provide for all employees; even employees who use medicinal and recreational marijuana. The definition of employee is very expansive in an attempt to provide for coverage for all workers. For workers who are hurt while working or develop occupational diseases, workers’ compensation insurance pays for medical expenses and partial wage replacement during periods of temporary disability. It may also provide money for permanent impairment benefits for those who qualify. Today Colorado Employers and insurers are denying work comp claims for legal use of marijuana.
Legalization is causing a significant increase in consumption
As soon as Colorado legalized both recreational and medicinal marijuana, usage among Coloradans, both young and old, increased significantly and now the state, without a doubt, ranks No. 1, in the nation, in consumption, according to a new report. The report, prepared by investigators with the Rocky Mountain High Intensity Drug Trafficking Area (RMHIDTA), details some of the concrete impacts marijuana legalization has had on Colorado.
According to RMHIDTA report, Colorado youth do not just rank No. 1 in the nation for marijuana consumption; they are 55 percent higher than the national average. Adult use in the state also comes up very high, which the report notes is 124 percent higher than the national average. Although it is not known definitively, these numbers should translate into a corresponding radical increase in worker and injured worker consumption. Our subjective experience, at the Law Office of Donald J. Kaufman, is a sharp increase in the testing of injured workers, and the illegal reduction and wrongful denial or worker benefits. Although we do not ever encourage getting stoned on the job, there are some things all workers need to know.
“C.R.S. 8-42-112.5. Limitation on payments – use of
controlled substances. (1) Nonmedical benefits otherwise
payable to an injured worker is reduced fifty percent where
the injury results from the presence in the worker’s system,
during working hours, of controlled substances, as defined in
section 18-18-102 (5), C.R.S. that are not medically
prescribed or of a blood alcohol level at or above 0.10 percent,
or at or above an applicable lower level as set forth by federal
statute or regulation, as evidenced by a forensic drug or alcohol
test conducted by a medical facility or laboratory licensed or
certified to conduct such tests. A duplicate sample from any
test conducted must be preserved and made available to
the worker for purposes of a second test to be conducted at the
Worker’s expense. If the test indicates the presence of such
substances or of alcohol at such level, it is presumed that
the employee was intoxicated and that the injury was due to the
Intoxication. This presumption may be overcome by clear and
The legal foundation for discrimination
With Alcohol, there is a presumption of intoxication at 1.0. With Marijuana the employer must, after an industrial injury: 1. Test and find Marijuana in the injured worker’s system. 2. Keep a sample of the testing material and make it available to the injured worker. 3. And last, and almost impossible, prove, that the intoxication caused the injury. If all three criteria are met, by the employer or insurance company, the injured worker may suffer from a 50% reduction in lost wage benefits. Medical benefits and all other benefits are unaffected.
So, when an employer or insurance company denies a compensable claim or threatens an injured worker, they do so in bad faith and most drug tests at the time of injury are designed to unduly harass injured workers. Unfortunately, this harassment is on the increase. The story gets worse. Real discrimination against a legal activity is now becoming as routine as positive drug test results.
Where insurance companies and employers are actually hurting workers
The real danger zone, for the injured workers, is found in C.R.S. 8-42-103(1)(g). “In cases where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wages loss shall not be attributable to the on-the-job injury.” Many employers have policies concerning employees who test positive for Marijuana. While Amendments 20 and 64 legalized Marijuana in Colorado it also does not prohibit employers from terminating employees, and discriminating against them, for marijuana use. While an industrial injury might not have been caused by “intoxication,” is it reasonable to terminate an injured worker for testing positive for marijuana use?
The Colorado Court of Appeals found, in a parallel case, that firing an employee for violation of an employer’s zero-tolerance drug policy after testing positive for marijuana in a random drug test ordered by the employer is constitutionally permissible and not a violation of the employees right. Employer’s policy stated: “[I]f a current employee is substance tested for any reason . . . and the results of the screening are positive for . . . illegal drugs, the employee will be terminated.” The worker was terminated after a positive test and denied unemployment benefits. (Jason M. Beinor v. Industrial Claim Appeals Office of the State of Colorado and Service Group, Colorado Court of Appeals Nos. 12CA0595 & 12CA1704 Arapahoe County District Court No. 11CV1464)
What do I do If I am injured and will test positive for Marijuana?
In Colorado, it’s “stoned” cold legal to fire an injured worker as a result of a positive drug test in some circumstances, but there are many exceptions. The apparent new focus of employers and insurance companies in Colorado Workers Compensation cases is to test injured workers at the time of an industrial injury then fire the worker for failing a drug test and not because of the industrial injury. Then the employers and insurers argue the wages loss was the result of the termination, for cause, and not a result of the industrial injury.
We have developed many successful strategies to stop this from happening to our clients. First as legalization has arguably caused an increase in consumption in most demographics; so often the employer’s zero-tolerance drug policies are very tolerant of marijuana use until an injury occurs. For a policy to be used to deny benefits, it must be actually enforced. Many employers have full knowledge of the employee’s marijuana consumption and do nothing until an injury occurs. The Colorado Court of Appeals allowed for discrimination for an actual “zero tolerance policy,” but made no allowance for a fake mechanism policy.
Often the employer of employees who consume marijuana are themselves marijuana consumers. A rule must be applied equally and enforced to be a legitimate rule for which you can deny benefits. We have cases where the employer has actually given the employee marijuana then sought to deny benefits for usage after the injury. The courts are very good at the application of good old-fashioned common sense as it applies to rule enforcement. In discovery, we often ask for all previous drug tests administered to all employees ever and a list of employee names. When no drug tests have ever been, and all of the co-workers all admit to marijuana use, even on the job, it is often apparent to many courts that there is no, official, “zero tolerance” drug policies.
As the battle over the denial of benefits is fought very early in the claim, and there are numerous defenses and strategies, it is critical that we meet with the injured worker right after the industrial injury to prevent the unjust and discriminatory denial of Colorado Workers’ Compensation lost wage benefits. Marijuana usage should not ever result in the denial of Colorado Workers’ Compensation benefits. We can help the injured worker, in most circumstances, avoid harassment, discrimination and the undeserved denial of lost wages. Call me if you need help. -Don Kaufman (970) 947-1776