Safety and OSHA News

Injured employee tested positive for pot: Can he get workers’ comp?

It’s not a given that employees who test positive for pot use will have workers’ comp benefits denied. What was the deciding factor in this case? 

Michael Trent worked for Stark Metal Sales in Ohio. On June 30, 2011, Trent was injured at work when a large piece of steel fell on his legs.

Nursing notes from the hospital say when he was told that he had to give a urine sample, Trent said he couldn’t because he had done so before the injury occurred.

A urine screen was performed a week later, and Trent tested positive for marijuana metabolite.

Trent filed for workers’ comp benefits. The Ohio Industrial Commission approved his claim. Stark appealed, and a trial was held in a common pleas court.

Stark wanted to present testimony that, on the day he was injured, Trent told another employee he wouldn’t be able to pass a drug test.

The judge decided not to allow that testimony.

During cross-examination by Stark’s lawyer – testimony the jury didn’t hear – Trent said before he was taken to the hospital, he did tell a co-worker he couldn’t pass the urine test because he had smoked marijuana and believed it would still be in his system. He admitted he didn’t comply with Stark’s drug-free workplace rule, but he said it had been about two weeks before his injury that he last used pot.

The trial court upheld the decision to award comp benefits to Trent. Stark then went to the Ohio Court of Appeals.

Stark argued that by having marijuana in his system, Trent violated a provision in the company’s employee handbook and therefore wasn’t in the scope and course of employment at the time he was injured.

The court said whether Stark violated company policy wasn’t the issue.

Ohio’s workers’ comp law says if an employee is intoxicated or under the influence of a controlled substance not prescribed by a doctor, and this was the proximate cause of the injury, the employee won’t receive workers’ comp benefits.

But the law also states the drug test must be administered within 32 hours of an injury. That wasn’t the case with Trent. The drug test occurred a week later.

The court said since a qualifying drug test wasn’t administered within 32 hours of the injury, it can’t conclude Trent was under the influence when he was injured.

The appeals court also ruled the trial court acted properly when it decided not to allow the testimony that Trent had told another employee that he wouldn’t be able to pass the drug test.

In many states, if it can be shown that intoxication or use of illegal drugs is the primary cause of a workplace injury, workers’ comp benefits will be denied.

But like so much else in the legal system, if the workers’ comp law isn’t followed to the letter – such as not performing a drug test within the required time period after an injury – it will be that much more difficult to show alcohol or drug use was the primary cause.

What do you think about this case? Let us know in the comments below.

(Michael G. Trent v. Stark Metal Sales Inc., Court of Appeals of Ohio, Fifth Appellate District, No. 2014CA00141, 3/23/15)

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Comments

  1. Could they have done a blood test at the hospital the day of the injury?

  2. Did the large piece of steel fall on his legs because he was stoned and negligent and he contributed to his own injury? That really should be the questions at hand.

    • Exactly! What was the root cause? What made the steel fall? Don’t jump to conclusions. This question is about the money not the cause. Saliva testing could be used as an alternative and more indicative of current medicinal/drug influence.

    • Glenna Sutton Smith says:

      Too often incident investigators want to take the easy way out and assign blame to an employee being under the influence rather than find the true root cause.
      Also when it comes to testing for THC, our current test methods are flawed and do not give a true indication of whether the individual is currently under the influence. Better “real time” tests need to be developed for a reasonable cost.

  3. an urine test don’t show if you were stoned at the time of the injury or not since it can stay in your system for 30 days after you had taking it so are you high for 30 days when you smoke this stuff????

  4. Darren says:

    A saliva stick test is accurate at time of incident . But as mentioned in this post was it one of the contributing factors because of impairment or company trying to avoid investigation because of negligence.

  5. A post accident drug test is pure intimidation to keep employees who do recreational or medicinal pot from reporting accidents. What people do in their homes is their business as long as it does not endanger others. The serious problem is anyone could be impaired with prescription pain meds and pass the test.

  6. A simple policy revision that states refusal to provide a sample for a post accident UA or BA is grounds for corrective action up to and including termination needs to be in every companies handbook. This takes lets everyone working in the facility know that there is going to be a post accident UA/BA and needs to be enforced on ever case.
    If medical cards are had why have we not seen cases brought by the ADA when someone is terminated for a failed THC UA? Low level possesion is no longer and issue with the DEA but this is still a scheduled “narcotic” ranking right next to strong opates.
    A doctor prescribes it…. You buy it in a medical “dispensary”….. Test data suggests it helps with numerous ailments….. BUT we still question if someone was under the influence at the time of injury on something that has a detection period of up to several weeks…..
    Someone help me understand as I always wanted to find out why the ADA would not apply in a medical state and when we as EHS/HR professionals can get the legal community to determine “how much” during a UA would be allowed to say the injured was “under the influence”.

  7. Its been over a week since i took my workmans comp drug test how long do the results take to know if i passed or failed

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