A worker uses questionable judgment while using heavy equipment. He’s seriously injured, and a test shows he used illegal drugs. The employee applies for workers’ comp. Does he get benefits?

Here’s what happened:

Michael Wiehe was an employee of Kissick Construction Co. in Kansas. The company had been hired as part of a highway-widening project.

Wiehe was operating a roller which leveled and compacted dirt before asphalt was laid on top. He attempted to break apart a large pile of dirt when the roller tipped over. Wiehe was thrown from the machine. The roller had a seat belt, but Wiehe wasn’t wearing it.

He suffered numerous injuries, including severe ones to his pelvis.

A drug test was performed on Wiehe at the hospital. He had a level of marijuana which was more than four times the amount needed to establish a conclusive presumption of impairment under Kansas law.

Wiehe admitted that he had used both methamphetamine and marijuana the day before he was injured. However, he said he was clearheaded on the day of the incident.

The Workers’ Compensation Board awarded benefits to Wiehe. It said the impairment exception didn’t apply in this case because there wasn’t enough evidence to show that Wiehe had behaved erratically or unusually before the incident.  His employer appealed.

To show that Wiehe was impaired, a company foreman testified that he’d noticed Wiehe acting “a little goofy” before the incident, bobbing and weaving his head.

An experienced operating engineer also testified that Wiehe’s attempt to flatten a mound of dirt that was too large showed an extreme lack of judgment.

A toxicologist told the court that a person who is impaired by marijuana would function normally until something unexpected is placed in his or her path. The toxicologist said Wiehe might have carried out his job just fine that day if the large lump of dirt hadn’t been there.

The appeals court overturned the decision of the Workers’ Compensation Board. Wiehe would not get workers’ comp benefits. It said the company had proven that his impairment caused him to operate the roller in a manner that demonstrated extremely poor judgment.

What do you think about the ruling? Let us know in the Comments section below.

Wiehe v. Kissick Construction Co., Court of Appeals of Kansas, No. 102,669, 5/6/10.

The California Chamber of Commerce says Proposition 19 would lead to more workplace injuries by forcing employers to let workers smoke pot on the job.

A five-page legal analysis released by the CalChamber (PDF) also claims an employer’s hands would be tied to take any action based on the perception that an employee’s marijuana use is a potential threat in the workplace.

Employers would have to show that pot use actually impairs job performance, according to the analysis.

The CalChamber gives this example: If a forklift driver showed up smelling of pot smoke, an employer could not take disciplinary action until it could be shown that the employee’s job performance was “actually impaired” by the marijuana use.

Proposition proponents say that’s not the case. They cite a determination by the state Legislative Analyst’s Office that employers would “retain existing rights to address consumption of marijuana that impairs an employee’s job performance.”

David Rosenfeld, a union lawyer with ties to the Proposition 19 campaign, told The Los Angeles Times that employers are upset because they wouldn’t be able to simply fire employees who test positive for pot, which can stay in the body for days. Instead, they’d have to show that their work was impaired. “There are lots of people out there who use marijuana responsibly and it doesn’t impact their work,” Rosenfeld said.

In addition to the CalChamber, the Association of California School Administrators and the League of California Cities have opposed the measure for similar reasons.

Proposition 19 would make it legal for adults 21 and older to possess up to an ounce of pot for personal use. Polls show slightly more than 50% of those asked support the measure to approve Proposition 19.

Do you think workplace safety would be harmed by the passage of Proposition 19? Let us know in the Comments Box below.

Reason: Prescriptions for narcotic painkillers, anti-anxiety medications, sleep aids and other powerful drugs are rampant.

“In the past it was cocaine, it was PCP, it was marijuana,” Chuck Hayes of the International Association of Police Chiefs told The New York Times (free registration required). “Now we’re into this prescription drug era that is giving us a whole new challenge.”

In some states it’s against the law to drive with any amount of illegal drugs in the blood.

But the situation involving prescribed drugs isn’t as easy since effects vary greatly from person to person and depend upon such factors as interaction with other medications.

Law enforcement officials say impairment by legal drugs is growing so rapidly that hundreds of police officers across the country are undergoing special training to detect it.

Drivers charged with driving under the influence of legal drugs can try to say that they didn’t realize the effect the medication would have on their driving. However, that doesn’t hold up if the bottle had a warning on it. If the driver is pulled over while on the employer’s clock, the company could face liability.

Here’s a question to pose to workers: Would you take on a hazardous job at home, such as using a chain saw, and risk getting injured, if you felt drowsy from a prescription medication?

Are workers who drive on the job or perform other safety-sensitive tasks required to tell you about prescription medications that might cause drowsiness? You can leave a reply below.

A company decided to take back a conditional offer of employment after it found the applicant was a recovering drug addict. A lawsuit followed.

Here’s what happened: Donald Teaford applied for a job at Hussey Copper in Leetsdale, PA. Teaford was offered a production job at the plant which fabricated copper products. His offer was conditional. First, he needed to pass a physical and drug test conducted at an occupational medical facility, Heritage Valley Health System. All production jobs at Hussey were considered safety-sensitive positions.

During his physical, Teaford didn’t tell the nurse that he was being treated by a doctor at a clinic for dependency on opiates, including Oxycodone, and that he had been prescribed and taking methadone, a drug used to prevent withdrawal symptoms in patients who were addicted to opiates.

His urine tested positive for methadone.

Dr. Daniel Nackley, the Medical Director at Heritage Valley, contacted Teaford, who then said he was under treatment and taking methadone. Nackley received a letter confirming Teaford’s treatment and methadone prescription.

Nackley tried to contact the doctor who prescribed the methadone but wasn’t able to do so.

Hussey’s human resources department looked into possible accommodations for Teaford. However, Hussey’s head of safety said all the production jobs were safety sensitive and an accommodation wouldn’t be possible.

Based on the information he had, Dr. Nackley recommended Hussey should not perform safety-sensitive work.

Hussey’s safety manager decided that Teaford’s offer had to be rescinded because he wasn’t medically cleared to perform safety-sensitive work.

The Equal Employment Opportunity Commission (EEOC) filed a lawsuit, alleging that Hussey discriminated against Teaford because he was a recovering addict in a supervised rehab program when it withdrew the conditional offer of employment. It seeks damages and back pay for Teaford.

The EEOC argues that Hussey failed to conduct an individualized assessment of Teaford, as is required by the Americans with Disabilities Act (ADA).

Hussey filed a motion to get the case thrown out, claiming that the Teaford’s physical and drug test, along with the analysis from Dr. Nackley, was an individual assessment. It also argued that hiring Teaford would have posed a high probability of substantial harm to himself or others.

The court’s decision: It would not throw out the lawsuit. It will now either have to go to trial or be settled out of court.

The court noted Dr. Nackley acknowledged that every situation involving opiate use is unique, and that a neurological exam was available to make an individual assessment. But a neurological exam wasn’t performed on Teaford.

For that reason, the court said Hussey didn’t conduct the required individual assessment on Teaford.

The take-away for companies: You can set qualifications for safety-sensitive jobs. However, medical professionals have to perform their due diligence to disqualify applicants from a job.

Cite: EEOC v. Hussey Copper, U.S. District court, W.D. PA, No. 08-809, 3/12/10.

A city of Jeffersonville, IN, employee had taken two prescription pain medications just seven hours before the garbage packer he was driving was involved in a five-vehicle crash that killed a teenager.

Roger Crum Jr. was taking Lortab and Flexeril for lower back pain. At first he told investigators he took the meds only at night.

But later Crum admitted he took the pills between 4:30 and 5:00 a.m. on the morning of the crash. The pile-up happened at 11:30 a.m.

When Crum’s vehicle struck a small car, it killed its driver, 19-year-old Bethany Burrier. Three others were hospitalized. Crum was treated at the scene for minor injuries.

A city report notes the FDA says Lortab can cause light-headedness, dizziness and sedation and can impair thinking and physical abilities for driving. Flexeril also comes with a warning about driving.

Jeffersonville officials were apparently unaware that Crum took the drugs. The city has a policy that requires its drivers to report taking prescribed medications to their supervisors.

What’s your company’s policy on prescription meds and workers in safety-sensitive jobs? Let us know in the Comments Box below.

A worker at a bear park smoked pot before coming to work where he fed grizzlies. The worker was seriously injured by one of the bears. A workers’ compensation judge called that “mind-bogglingly stupid.” But did the judge rule the worker was entitled to workers’ comp?

Montana’s comp law says: “An employee is not eligible for benefits otherwise payable under this chapter if the employee’s use of alcohol or drugs not prescribed by a physician is the major contributing cause of the accident.”

Here’s what happened in this case:

Employee Brock Hopkins entered a pen at Great Bear Adventures in West Glacier, MT, to feed grizzlies. He was attacked by one of the bears and escaped by crawling under an electrified fence. He suffered severe injuries.

Hopkins admits he smoked marijuana that day. (Changed from original version to clarify that the defendant smoked marijuana on the day of the incident.)

His employer presented no evidence about his level of impairment on the day of the attack.

Hopkins sought workers’ comp benefits for his injuries but was initially denied on the grounds that his use of marijuana was the major contributing cause of the accident. Hopkins appealed to the state’s Workers’ Compensation Court.

Here’s what the judge wrote: “When it comes to attacking humans, grizzlies are equal opportunity maulers, attacking without regard to race, creed, ethnicity, or marijuana usage. Hopkins’ use of marijuana to kick off a day of working around grizzly bears was ill advised to say the least and mind-bogglingly stupid to say the most.”

The judge noted that, while using pot before interacting with bears may have been stupid, there was no evidence presented to conclude that Hopkins’ pot use was the major cause of the incident.

The decision: Hopkins was entitled to workers’ comp benefits.

What do you think about the judge’s decision in this case? Let us know in the Comments Box below.

Hopkins v. Uninsured Employers’ Fund, Workers’ Compensation Court of MT, No. 2008-2152, 5/4/10.

Marijuana is now legal as a prescription painkiller in 14 states. But what if you have a drug-free-workplace policy?

When it comes to HR policies, companies in some states find the situation to be complicated.

But the good news is that when it comes to safety, companies’ rights are more clear — at least somewhat.

Seven medical marijuana states include employee protections. Only on-the-job consumption or impairment can be grounds for termination in Colorado, Hawaii, Michigan, Montana, New Jersey, New Mexico and Vermont.

Two more states, Rhode Island and Maine, have other explicit protections for medical marijuana patients.

On the other hand, in California, the state supreme court has ruled that drug testing for marijuana is legal and that firing an employee for medical marijuana use, even outside the workplace, isn’t discrimination.

When it comes to safety, federal regulations can come into play.

OSHA’s General Duty Clause states that all employers must provide a safe work environment to employees. So if it can be shown that an employee’s impairment is a danger to himself or other workers, a company can suspend or fire the worker.

On top of that, the federal Department of Transportation issued new guidelines last year that prohibit the use of medical marijuana for transportation workers in safety-sensitive jobs, including pilots, school bus drivers, truck drivers, subway operators, ship captains and transit security workers who are armed.

As courts rule on worker lawsuits against companies over the issue of medical marijuana, employers will receive more guidance.

Until then, this is a case where it’s good to get legal counsel involved before taking action.

We’re not making this up.

The Carlsberg brewery in Copenhagen, Denmark, just changed its policy on beer in the workplace.

It used to allow workers to take as many beers as they wanted from coolers around the production and warehouse areas. The only restriction: You can’t be drunk at work. It was up to the workers to be responsible. So, you see, they were thinking about safety.

Now, the workers can only drink beer during their half-hour lunch breaks in the company canteen.

So scores of workers went on strike.

Their union says it doesn’t mind the new policy, which other companies are adopting throughout Denmark. What bothers the union and workers is that they weren’t consulted on the policy.

Carlsberg’s truck drivers joined the production and warehouse workers in the strike, even though they’re covered by different beer rules. The truck drivers can bring three beers from the canteen because they don’t often have time to have their lunch there.

The employee of Denver’s Department of Safety was on duty and driving a city vehicle when he was involved in a crash.

He was immediately given a drug test that came back positive.

Denver’s City Attorney, David Fine, acknowledged the case and said they were looking into it. “It raises a lot of interesting and complicated questions,” Fine told Denver TV station CBS4.

Denver employment law attorney Emily Hobbs-Wright predicts the employee’s medical marijuana status probably won’t protect him from discipline.

Courts in other states have viewed medical marijuana the same way they view other prescription drugs: They may be legal, but that doesn’t mean you can be impaired by them while on the job.

Hobbs-Wright says employers will have to determine, using relevant medical standards, what constitutes marijuana impairment.

New Jersey just enacted a medical marijuana law, bringing the number of states with such statutes to 14.

How should businesses balance medical marijuana use and workplace safety? Let us know in the Comments Box below.

A worker tests positive for PCP right after he’s injured. Is he still able to collect workers’ comp benefits?

As this case shows, it’s sometimes a matter of who the workers’ comp commission decides to believe.

Carl Johnson, a truck driver, was lifting 80-pound boxes when he felt a sharp pain in his shoulder and lower back.

After reporting the injury to his employer, he was drug tested the same day. He tested positive for PCP, also known as angel dust, a hallucinogenic.

Johnson claimed he didn’t use PCP and that he wasn’t impaired at work on the day of his injury.

Arkansas state law says comp can be denied when there is a positive drug test. However, if the worker can prove the drug use didn’t substantially cause the injury, comp can be awarded.

When the case was first heard, an administrative law judge found there was no evidence presented that Johnson appeared impaired.

Is worker’s word enough?

However, when the Workers’ Compensation Commission took up the case, it disagreed. The commission said it was up to Johnson to prove that he wasn’t impaired, and he presented no testimony other than his own to prove that.

He didn’t call on co-workers or customers to testify that he wasn’t impaired the day he was injured.

Johnson took the commission’s decision to the state appeals court.

The court said the burden to prove the PCP in his system didn’t cause his injury was on Johnson.

The court noted, “While Johnson’s testimony about his lifting injury might begin to carry this burden if credited 100%, the Commission was not required to believe him.”

Because the commission didn’t believe Johnson’s testimony, the court upheld the commission’s decision: Comp denied.

However, had the commission found reason to believe that Johnson wasn’t impaired by the drug use, he would have received comp payments.

How should cases where an injured worker tests positive for drug use be handled? Let us know what you think in the Comments Box below.

Cite: Johnson v. U.S. Food Service, Inc., AR Court of Appeals, No. CA09-851, 1/6/10.

What do you do with employees who have a history of injuries? Fire them and they may sue, but leave them on the job and they might harm themselves or others.

Now there’s a way for legally removing these people from the workplace.

Some companies conduct fitness for duty (FFD) evaluations in these situations. They’re similar to post-offer, pre-hire physical exams to determine ability to do the job. But FFDs can be done any time during employment and are broader: They determine physical, mental and emotional fitness.

A comprehensive FFD program would include:

• pre-placement medical evaluations, often done with safety-sensitive jobs
• absence management, including people who call in sick Mondays and Fridays and presenteeism, people not fully productive under stress from family issues or medication
• for-cause drug and alcohol testing, based on credible report of impairment, and
• pre-assignment clearance to new tasks or after leave due to injury or FMLA.

An FFD would withstand legal challenges if a company:

• administers it fairly across the board
• makes tests reasonable and job-related
• doesn’t make decisions on past health records, such as cancer history
• keeps test results confidential, and
• gives a disqualified employee the right to submit his or her own evidence as to fitness for duty.

For more information on FFD evaluations, click here.

Does your company use FFD evaluations? Let us know in the Comments Box below.

The provision has been on-again, off-again since 2008.

Recently, a federal court ruled that transportation safety was a compelling reason to mandate observation when employees who previously failed or refused to take a drug test are retested.

The rule requires observers to check people producing urine samples for prosthetic or other cheating devices. This provision takes effect Aug. 31, 2009.

The court took into account the recent development of a wide array of available cheating devices (see our previous article here). It also said the rule didn’t violate the Fourth Amendment prohibition on unreasonable searches and seizures. The judges on the court stated unanimously that employees who had failed or refused a previous drug test had diminished expectation of privacy.

Transportation Department (DOT) data show that the violation rate for return-to-duty and follow-up testing is two to four times higher than that of random testing.

DOT’s rule negates any collective bargaining agreements that prohibit or limit the use of direct observation collections for return-to-work and follow-up testing.

(Click here for the Federal Register notice on the new regulation.)

Do you support DOT’s decision to require observed collections in these circumstances? Let us know in the Comments Box below.

The Equal Employment Opportunity Commission (EEOC) had sued J.B. Hunt Transport, Inc., claiming that the rights of applicants for over-the-road (OTR) truck driving jobs had been violated.

Hunt chose not to hire OTR applicants taking certain prescription medications with side effects that could impair driving.

The trucking company argued that the large vehicle size and the extreme driving conditions faced by its OTR drivers warranted extra safety precautions.

Hunt cited Department of Transportation (DOT) regulations that allow an operator to require and enforce “more stringent requirements relating to safety of operation and employee safety and health.”

The two-judge majority on the 2nd Circuit disagreed with the EEOC, saying the applicants lost their jobs because of the medications they took, not because of any real or perceived disability under the Americans with Disabilities Act (ADA).

To find that the applicants were regarded as disabled, the EEOC had to show that Hunt perceived the rejected applicants as limited from a class or a broad range of jobs.

The two-judge majority found that OTR driving didn’t qualify as a class or broad range of jobs.

But Judge Sotomayor found that the EEOC has shown Hunt believed the rejected applicants were unfit to drive any truck — which qualified as a broad range of jobs.

Had one of the other two judges agreed with her position, Hunt would have been found in violation of the ADA.

If that were the case, Hunt would not have been allowed to set higher safety standards for its OTR drivers than required by the DOT.

The majority ruling in the Hunt case and Sotomayor’s dissent are online here.

What do you think about this case and Sotomayor’s dissenting opinion? Let us know in the Comments Box below.

We polled our editors of safety publications at Progressive Business and came up with this list:

10. More research on dangers of nano-particles to exposed employees. Among the new studies, one that showed long, thin carbon nanotubes exhibited the same effects as long, thin asbestos fibers when injected into mice.

9. The National Institutes of Health says the superbug methicillin-resistant Staphylococcus aureus (MRSA) is no longer limited to hospitals. Outbreaks of one strain — community-associated MRSA — have turned up in athletes, prison inmates, the military, daycare attendees and those who live in communal conditions such as college dormitories.

8. MSHA proposes and enacts a flurry of new mining rules in the wake of previous years’ mining disasters, such as Crandall Canyon, including: a policy letter on underground communication and tracking devices; a new final rule that increases the pounds per square inch that pressure seals must withstand in an explosion; a proposal to test miners for drugs and alcohol; and a final rule requiring additional safety equipment for rescue teams at underground mines.

7. California gets serious with heat stress on the job. The company that hired a pregnant teen who died of heat stroke this spring after working in a vineyard without enough shade or water was hit with the highest fine ever issued to a farming operation in the state. Merced Farm Labor’s license was also revoked until Aug. 24, 2011 after the death of Maria Jimenez.

6. The employer payment for most types of PPE rule takes effect. OSHA started enforcing the new rule May 15, 2008. The only exceptions: non-specialty safety-toe protective footwear; shoes or boots with built-in metatarsal protection requested by an employee; logging boots; and everyday work or ordinary clothing used solely for protection from weather.

5. An explosion at an Imperial Sugar Refinery near Savannah, GA, kills 14 people and injures dozens more. The blast destroyed a packaging plant. The cause, ignition of dust, placed an emphasis on workplace ignitable dust hazards.

4. Amendment to the Americans with Disabilities Act to place burden on employers. The revision may dramatically increase the number of employees who can legally qualify as disabled. Action step for employers and those in charge of safety: Instead of an open-ended light-duty assignment that might define a worker as disabled, re-assess the returning worker’s condition every two weeks.

3. Distracted drivers prove fatal and costly. A Sept. 12 collision between two trains in California killed 25 people. The National Transportation Safety Board is still investigating, but preliminary information shows the locomotive engineer of one train was using his cell phone to text within 30 seconds of the accident. In the wake of the crash, the Federal Railroad Administration enacted a new rule banning railroad employees from using cell phones (except in emergencies) and other electronic devices on the job. In another case, International Paper Co. agreed to pay $5.2 million to settle a personal injury lawsuit after one of its employees used her cell phone while driving for work. The employee hit another car, and its driver had to have an arm amputated as a result.

2. Now OSHA can multiply PPE and training fines by the number of employees. Under a new rule, OSHA can issue per-employee citations for those types of violations starting Jan. 12, 2009.

1. President-elect Barack Obama promises an “invigorated” OSHA. Obama supported the Protecting America’s Workers Act as a Senator. The bill would increase OSHA penalties. Obama has also called on OSHA to issue standards “in a timely and more effective manner.” While the financial crisis may delay some reforms the new administration may want, some changes can be made by just shifting existing funding.

Vote for your top safety story or nominate one of your own in the Comments Box below.

The random urine test positive rate is 47% higher than the pre-employment rate in general industry, according to Quest Diagnostics.

In jobs where random drug testing is mandated by federal law, the opposite is true. The random rate is 18% lower than the pre-employment rate.

Workers may think they need to be “on good behavior” when applying for jobs. After they’re hired, old habits may come back.

Here are the positive test rates reported by Quest:

• general workforce, pre-hire: 3.6%
• general workforce, random, 5.3%
• federally-mandated, pre-hire: 1.7%, and
• federally-mandated, random: 1.4%.

Overall, Quest says drug use among employees and applicants in the general workforce declined to 3.6% in 2008 from 3.8% in 2007.

Quest is a provider of drug testing services. More data is available here.

Cause of the accident: a roof-bolting machine fell on the employee’s leg.

His employer sought to deny workers’ comp benefits based on the positive drug test.

On top of the positive test, the employee also admitted he had obtained the prescription for methadone under false pretenses.

The state’s Workers’ Compensation Commission ruled the employee should receive benefits because the company didn’t prove that the drug use caused the accident.

State law states “no compensation shall be awarded to the employee … for an injury … caused by … the employee’s use of a non-prescribed controlled substance.”

The key phrase was “caused by.” The Commission found that the company didn’t show the drug use caused the accident. The decision held up when the company appealed.

Key: If an employee’s drug use didn’t cause a workplace accident and injury, workers’ comp benefits can’t be denied.

Cite: Dominion Coal Corp. v. Bowman, Court of Appeals of VA, No. 0628-08-3, 2/10/09.

John Keenan crashed his car into another driven by Laurie Riley. Her husband, Gregory, was a passenger.

While her husband’s injuries were minor, Laurie suffered knee and pelvis injuries that left her unable to work.

The Rileys claim Keenan’s long work shifts at Glen Habina & Sons, Inc., were partially to blame for the accident.

Keenan usually worked eight-to-nine hour days as a vehicle driver. But sometimes, after he completed his driving shift, he worked several more hours repairing vehicles.

On the day of the accident, Keenan worked his regular shift but didn’t work any extra hours repairing vehicles.

After work, he went to at least one bar. After the accident, his blood-alcohol level was measured at .178. At trial, an expert estimated that Keenan had consumed 13 12-ounce beers before the accident.

The Rileys claimed the combination of work fatigue and alcohol consumption caused the crash and sought to hold two bars and his employer responsible.

Good news for employers: A jury and then a state appeals court both ruled sensibly. They found that the alcohol consumption was a factor in the crash, but not work fatigue because on the day of the crash he hadn’t worked long hours.

The appeals court noted other courts have found employers liable when their employees cause auto accidents after required long work shifts.

But the court said that wasn’t the case here. Keenan worked only nine hours on the day in question, and he had a sufficient rest period — at least 13.5 hours — before his previous shift.

Imagine this: One of your employees is on pain medication that could compromise his safety and productivity, as well as that of co-workers. But, because of state law, you have to accommodate the employee. Not only that, but federal law says the pain medication is illegal.

What medication are we talking about? Marijuana.

That’s the case in Oregon, and a business lobbying group is pushing a bill to exempt employers from having to accommodate medical marijuana patients.

House Bill 2497 would allow businesses to terminate employees who test positive for marijuana, even if they are legally authorized to use it for pain management.

Employers would also be notified when a worker applies for a “marijuana card,” under the measure.

Associated Oregon Industries (AOI) sees medical cannabis as a liability for employers.

AOI’s vice-president for government affairs, J.L. Wilson, told The World that many employers have horror stories about employing medical marijuana users and impairment on the job.

Wilson notes that marijuana remains federally illegal, but in Oregon, employers are forced to accommodate those who have been approved to use it for pain.

Wayne Haythorn with Mothers Against Misuse and Abuse says the bill is designed to stir up fear and punish people who need marijuana for pain.

In what situations do doctors approve pot use for pain?

One example: Jude Isaacson had back surgery in 2000 and developed a spinal infection. She was using a wheelchair.

“Cannabis has brought me back,” she said. “I can focus now.”

Dr. Michelle Petrofes who treats six medical marijuana patients says pot isn’t her first line of treatment by any means. She said patients have to have tried every other medication first for pain before she will consider marijuana.

Pain management expert Dr. Daniel Rusu says most patients who request cannabis for pain management don’t qualify for it.

He also believes this battle over marijuana will continue.

How can employers balance compassion for workers in severe pain with their employee drug policies? What do you think is the right course of action? And readers from Oregon, let’s hear from you, especially. You can leave comments in the box below.

It’s fired an employee of almost 30 years who was found with an open can of beer while driving a snowplow.

Police stopped the 57-year-old worker after receiving a call from a passerby.

Officers found an open can of beer in the plow, according to CBC News.

The driver passed a breathalyzer test, however the officers issued him a ticket for $438 for possessing open alcohol in a motor vehicle.

The city suspended the worker with pay. Then the downtown borough council of Ville-Marie voted unanimously to fire the employee.

The city has fired other municipal workers for drinking while using city equipment over the years.

In 2003, a worker was fired for driving his snowplow through a red light and hitting another vehicle.

The union and the borough are negotiating the terms of the man’s dismissal.

The makers of the Whizzinator have pleaded guilty in federal court to two conspiracy counts, putting an official end to their product.

The company owned by George Wills and Robert Catalano, Puck Technology, sold the device that helped men pass drug tests.

The Whizzinator is a prosthetic penis that comes with a heating element and fake urine. It was sold from 2005 through this year.

Federal prosecutors claim the product helped people circumvent federal workplace drug-testing programs. They cited customer testimonials on the company’s Web site, including one in which an employee bragged about using the device to pass a drug test required by Department of Transportation regulations.

The men will be sentenced in February and face up to eight years in prison and a $500,000 fine each.

The Whizzinator entered public consciousness three years ago when former Vikings running back Onterrio Smith was caught with one in an airport.

The device made news a second time when a couple asked a convenience store clerk in McKeesport, PA, to heat one in a store microwave so the fake urine would attain body temperature. The store clerk called police. The woman, who wanted the fake urine to pass a pre-employment drug test, pleaded guilty to disorderly conduct and agreed to pay to replace the store’s microwave.

OSHA regulations prohibit use of microwaves to heat food once bodily fluids have been in them.

The facts:

Michael Adkins slipped on a patch of ice in a freezer at work. He applied for workers’ comp and received payments.

His employer contested the award. Adkins admitted smoking pot three days before the incident.

At trial, a doctor testified that the drug test report showed Adkins’ physical or mental faculties were altered at the time of the accident.

Texas state law says if an employee is under the influence at the time of a workplace accident, the company doesn’t have to pay comp.

However, Adkins tried to say he wasn’t high at the time of the accident and presented two co-workers as witnesses, who said he didn’t appear impaired that day at work.

State law doesn’t specify a level of illegal drug use at which a person is considered under the influence. It doesn’t work the same as blood-alcohol level after a car crash.

Who won the case?

Answer: The company won. It didn’t have to pay Adkins’ workers’ comp because he was under the influence of a controlled substance when he sustained the injuries.

The court put more weight on the doctor’s testimony than that of Adkins’ co-workers.

Analysis: Demand drug tests after injuries

While no two states’ workers’ comp laws are exactly the same, many withhold payments when an employee is injured while under the influence of alcohol or drugs.

That’s why it’s crucial to have employees drug-tested after workplace injuries. The results won’t just affect comp. They’ll also affect the decision on the employee’s future at your company.

(Adkins v. Texas Mutual Insurance Co.) To see court documents related to this case, click here.