Greetings,

We are still in a bit of no man’s land on definitive answers regarding the use of Medical Marijuana and the intoxication defense in Florida.   (The 1^st DCA has upheld the law that WC does not need to pay for Medical Marijuana.)

• I have heard the argument that a positive test does not matter because marijuana stays in your system for up to 28 days.  Under the law, if you test positive, you are presumed intoxicated.  It does not matter if the claimant testified he smoked at the Pink Floyd laser light show 2 weeks ago, a positive test equals presumed intoxication.

Gustafson’s Dairy v. Phillips, 656 So.2d 1386(Fla.1^st DCA 1995).  The claimant’s arm was injured when it was caught in a machine.  She tested positive for marijuana and admitted usage.  The presumption applied to marijuana.

• What happens if the Employer was aware the claimant had a Medical Marijuana card and allowed them to work?   The statute states:

440.09(7) (b) (in part)-   However, if, before the accident, the employer had actual knowledge of and expressly acquiesced in the employee’s presence at the workplace while under the influence of such alcohol or drug, the presumptions specified in this subsection do not apply.

And here is the case on the issue (dealing with alcohol):

Stepanek v. Rinker Materials, 697 So.2d 200 (Fla.1^st DCA 1997).  The employer forfeits the presumption only if the employer had actual knowledge of an expressly acquiesced in the employee’s presence at the workplace while under the influence of such alcohol or drug.  The claimant must show that the employer made some overt expression either by words or conduct showing, that although the employer knew the claimant was under the influence at the time, the claimant could no less remain at work in such a condition..

While we don’t have a definitive answer on whether the Employer’s knowledge of a Medical Marijuana card would rise to “expressly acquiesced”, I think it definitively weakens our arguments.

• However even if the Employer knows the claimant has a Medical Marijuana card, I do think refusing a drug test could still be grounds for an intoxication denial.   There is no way to know what other drugs or alcohol might have been involved if the claimant refuses the drug test.

440.09(7)(c) If the injured worker refuses to submit to a drug test, it shall be presumed in the absence of clear and convincing evidence to the contrary that the injury was occasioned primarily by the influence of drugs.

We will continue to monitor the caselaw as it evolves.

Sincerely,

Morgan Indek | Managing Partner