Many companies have a “zero-tolerance” drug and alcohol policy.
Simply put, if you are using drugs or alcohol or are under the influence
at work, they will terminate you. In fact, some company policies require
that any employee that is
hurt on the job must submit to a post-accident drug test. Based on that, you would probably
think that if you tested positive for marijuana on your construction site
after being injured on the job, you would not only be terminated, but
also would not be eligible for
workers’ compensation (“WC”) benefits. Wrong!
NRS 616C.230 states that an employee is not eligible for WC if their injury
was proximately caused by the use of a controlled substance. This means
that the employee had the controlled substance in his/her body at the
time of the injury without a lawful prescription. In addition, the above
law says that there is a rebuttable presumption (meaning you start out
assuming the controlled substance did cause the accident), but this can
be successfully disputed with evidence. Seems pretty straightforward,
right? Again, wrong!
The Nevada Supreme Court has well established that the injured worker “need
only establish by a preponderance of the evidence that the presence of
a controlled substance did not cause the injuries.”
Desert Valley Construction v. Hurley, 120 Nev. 499, 503, 96 P.3d 739, 742 (2004).
What does that all mean? For WC purposes, a positive drug test may not
affect your claim at all, if the injured worker can prove that the injury
would have happened regardless of the positive drug test. To illustrate,
if a construction worker is hit on the head from falling debris, and then
tests positive for marijuana, it is likely that the WC claim will still
be accepted, as the injury would have happened despite the injured worker
testing positive for marijuana. This, like many other situations in WC
law, is very fact specific and requires the expertise of an attorney.
Medical Marijuana & Workers’ Comp Claims
What if you have a prescription for medical marijuana? What impact does
that have on your claim? As many know, medical marijuana is a fairly new
phenomena, making it also new to the courts in Nevada. There is not a
black-and-white answer to this, which makes it a matter for an experienced
attorney. What if the company has a “zero-tolerance” policy,
despite that law stating that the controlled substance has to be the proximate
cause? As above, there is no black-and-white answer to this either. A
lawyer can review your individual case and take the best course of action
for your unique set of circumstances.
In summary, simply because you test positive for marijuana after a work
accident does not mean that you will not be eligible for WC benefits,
including but not limited to retroactive back-pay (or “TTD”),
medical care, and/or a possible settlement at the end of your case. This
is a very complicated area of the law that requires partnering with an
attorney in order to get the benefits you are entitled to under the law.
free consultation with a Las Vegas workers’ compensation, please contact Shook &
Stone at (702) 996-6066.