I had the opportunity recently, at the Workers' Compensation Institute, to converse about a variety of issues with those who regulate Worker’s Compensation in America. The conversation eventually turned to dope, and there was great interest and entertainment found in the topic.
Dope somehow persistently invades such conversations. There is some degree of academic interest. Some decry the challenges of measuring impairment. See Pot, Impairment, and Car Crashes (July 2017). Some lament the banking challenges of drug dealers. See What will the next 30 Years Teach Us (January 2016); Justice Thomas and Pot (August 2021). Some just elatedly expound on their love of pot and all things pot. The mere mention of weed excites them. The conversation turning to dope enthuses them.
The troubling aspect is that a great many educated, experienced, and otherwise grounded individuals continue to flippantly, persistently, and ignorantly proclaim that weed is “legal.” They banter regarding the manner in which the world has changed since dope "became legal." I find myself persistently reminding the masses that ganja is illegal in every U.S. State. You cannot blame them for their misstatements, there are stores on every corner hawking weed. It sure looks legal to the casual observer.
There is persistent focus in these conversations on the changes in the employment process. Many find comfort or solace in their perceptions that various employers have stopped testing for cannabis in the pre-hire process. Their insinuation is that dope is acceptable, and weed is simply a ubiquitous part of the workplace.
Intoxicants and depressants are dangerous in the workplace. They are dangerous to those operating equipment, and even those in the presence of equipment. I encourage you to tread carefully when explaining to the police officer that you have not been drinking and driving but merely smoking “legal" dope. I wish you the very best.
In the health perspective, there is some chance weed is actually dangerous. See Smoking Never Killed Anyone (August 2024). So, it could kill you. It could get you arrested. But wait, there’s more!
In the post-injury context, many statutes provide an intoxication defense to workers' compensation. And while many would focus on the technicality of the word “intoxication,“ various statutes provide termination of benefits for the presence of drugs, legal or not. Many injured workers find themselves with no benefits as a result of their Drug use. This includes cannabis.
Employers that condone or ignore drug use and impairment may find themselves facing allegations of negligence. If someone is injured by an impaired forklift driver, truck driver, or machine operator, it is possible that impairment could lead to allegations of negligent hiring or supervision. It is possible that the employee's use of bourbon, marijuana, or oxycodone will result in a conclusion that the employer was negligent. An employer might exclaim "we didn't know," but questions might persist.
In the instance of a coworker being injured, a company might still be shielded by the immunity of worker’s compensation. The employee distinction may be critical. An employee injured by an intoxicated coworker may be prevented from seeking a negligence recovery against either the employer or coworker. Thus, for workplace injuries, there is perhaps solace in "don't ask, don't tell" regarding workplace drug use.
However, what if the injured individual is instead struck on a street corner, at a customer's facility, or similar? Might a drug-using worker and her/his employer be liable for damages to such a plaintiff? In the event of such an injury, must the employee be “intoxicated“ for a jury to conclude the employee or her/his employer is liable for negligence? I would suggest not necessarily so. It’s quite possible that a substance-using employee could create employer liability.
These issues seem alien in many dopey conversations I witness. There is seemingly ignorance of implications, or perhaps merely ambivalence.
The disappointment is not in the debate. The world is certainly changing, as one of the recent participants pointed out. Attitudes toward persistent, or constant intoxication, addiction, and illicit drug use do seem to be shifting. Society has become seemingly welcoming to a population of the Spicoli walking dead(heads). There is a seeming increase in societal acceptance of personal choice or addiction taking precedence over the safety, well-being, and protection of society at large.
But what is as disappointing is the lack of comprehension. It is unlikely the result of negligence or happenstance ignorance. It is more likely, the result of willful ignorance, and which these leaders choose to ignore the legalities and implications of weed use.
After the recent panel presentation, and my reminder regarding illegality, I had multiple audience members and panelists approach me with their gratitude regarding my reminders that dope remains illegal. They express incredulity and astonishment at the misapprehension of this technicality.
This technicality is resulting in damage to American workers. They get a "recommendation" for ganja from a physician. They purchase marijuana at a local storefront. They end up taking a drug test, related to a work injury or not and then are fired for flunking it. See Decriminalizing Marijuana (May 2021). They are damaged by their beliefs that they "had a prescription" (they did not) and that pot "is legal" (it is not).
The damage to these people is real. They are hurt by the disinformation and misinformation too common in the press. Every time someone says pot "is legal," they reinforce falsity. Workers rely on that falsity. Workers are damaged by that falsity. Teachers and others have been fired for their use of weed. Injured workers have had their benefits denied because of their use of weed. Marijuana is illegal. No matter how many times the press publishes "legal," and misleads these workers, pot will presently be illegal.
Is the press to blame for people's misfortune? Perhaps not. But, the press could be more responsible in their word choice. Are administrators and regulators to blame for worker's woes from the use of dope? No more so than the press. But, it is troubling to see these state leaders blithely and mistakenly repeating the "legal" myth in any context. Hearing them do so repeatedly, publicly, and erroneously is nonetheless disconcerting.
Could workers rely to their detriment on these misstatements? Who will pay the price of a positive drug test? It will not likely be the regulator or reporter. The probability is that it will be the worker. Choose your words wisely, someone may be listening.
