Q: What can I do about a failed workmans comp drug test for prescription medical marijuana?
My husband cut his hand at work. It was very minor. His employer thought it would be a good idea to go to a doctor and file a claim with workmans comp. My husband told his employer he smoked marijuana and had a prescription, they said it was fine so against his better judgement and at the request of his employer he went through worksmans comp. He failed the drug test-for his prescription marijuana. Now workmans comp wants him to do 6 months random drug testing, he will fail as he has a medical marijuana prescription. His company loves him and wants to keep him so they said he can become a contractor instead of an employee, he would like stay an employee for the benefits. Is there anything we can do?
A: Work comp shouldn't be requiring random drug testing as it relates to the injury and original date of accident unless the authorized treating physician is prescribing medications and drug testing is medically necessary. However, the employer may have a drug free workplace program in place but your husband should have been provided with the employer's written policy as to the drug free workplace. If the employer has an established drug free workplace program and meets all the requirements, random drug testing may be a requirement. I haven't reviewed the employer's policy but employer's who have an established drug free workplace are probably receiving a discount on their workers' compensation premiums so if they don't drug test, it's possible they may lose that discount. I'd recommending contacting a workers compensation attorney to discuss the situation in more detail.
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