I am starting to see a few claims where the claimant tests positive for marijuana post-accident, and they have a Florida medical marijuana card. I have not yet seen one where the drug screen was done within a short enough window of time to deny the entire claim under the intoxication defense yet
If the drug screen was done 3 days after the accident, that is likely too remote to be able to prove the claimant was under the influence at the time of the accident. There is no statute or caselaw that gives us the exact window, but many use 24 hours as the timeframe.
Despite the fact Florida has recognized medical use of marijuana, it still remains illegal under Federal law. And while I am not an employment law attorney, I have seen cases from other states and have seen instances in Florida where employers terminate an employee for a failed drug test for marijuana, even though they are using it under the direction of a doctor. No matter what, use of marijuana, medical or otherwise, still violates Federal law.
So, from a TPD standpoint, if the claimant fails a post-accident drug test, and the employer terminates them, you can likely deny TPD. Arguably, breaking Federal law is misconduct under 440.02(18) so that you could deny TPD indefinitely. If the JCC finds it doesn’t rise to the level of misconduct, it is still a termination for cause, and if the employer had light duty that is and remains available, you can deny TPD.
As for the intoxication defense, it does not matter that it stays in your system for up to 30 days. It does not matter that witnesses say they were acting normal. It does not matter if the claimant says he smoked it at the Pink Floyd laser light show at the Orlando Science Center planetarium three Thursdays ago. If it is in their system at the time of the accident, they are presumed intoxicated (the famed presumption). The Gustafson case says the presumption applies to marijuana. Even in a non-drug free workplace setting, the claimant would have to show by clear and convincing evidence that the accident would have happened regardless of the fact they were stoned. Their statutory burden is to prove the intoxication did not contribute (arguably even 1%) to the accident, a pretty high burden.
There is no first DCA opinion yet on this issue, but arguably having a Florida medical marijuana card does not change our ability to use the intoxication defense.
And there is no DCA decision yet on whether we will need to authorize or reimburse medical marijuana, but there has been JCC’s who have denied the request.
Morgan Indek | Partner