It’s definitely a trend.

New Jersey recently became the fourteenth state to legalize the use of “medical marijuana”.  Also, the District of Columbia is setting up a legal use program.  Also, there are reportedly eight other states which currently have bills or ballot measures knocking around their legislatures to legalize the medical use of marijuana.  Also, there are other states, such as Maryland and Arizona, with reduced penalties for persons using marijuana for medical reasons.  As Robert Allen Zimmerman said back in the ‘sixties, “You don’t need a weatherman to know which way the wind blows.”

The fourteen states where the use of medical marijuana is legal under state law (there may be more at any time) are:  Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.

The eight states with live pending legislation are:  Arizona, Illinois, Massachusetts, New York, North Carolina, Ohio, Pennsylvania and South Dakota.

Provider authorization and distribution rules vary widely among the “legal” states, from almost anything goes to tightly controlled.

No federal statute recognizes the legal use of marijuana.  But federal law enforcement seems to be looking the other way in the medical marijuana states.  In fact, on October 19, 2009, the U.S. Department of Justice released a memorandum advising federal prosecutors not to target medical marijuana patients whose actions are in compliance with the law in states that have legalized medical use.

So, we have a federal/state conflict, and I think it’s safe to say that we have a trend in the states in favor of legalizing medical marijuana.

So, the culture of the labor pool in many states is changing with regard to the use of marijuana.  It seems to me that it is an inevitable consequence of this trend that more workers will be testing positive for marijuana use if not actually coming to work high.

So where does this leave the maritime employer under the Longshore and Harbor Workers’ Compensation Act?

The good news:  specifically as regards the Longshore Act, medical marijuana does not present any new issues for the employer, although it seems to me that old problems may arise more frequently due to the changing environment.  (Actually, that’s not precisely true with regard to new issues.  How would you like to be the employer trying to explain to an administrative law judge for the first time that you really don’t want to pay for the claimant’s marijuana as a medical expense, even though it is prescribed by his treating physician as reasonable and necessary treatment in a state where it is perfectly legal?)

The bad news:  the existing statutory provisions regarding intoxication (or drug use) at the work place are not favorable for the employer.

Section 903(c) of the Longshore Act states that, “No compensation shall be payable if the injury was occasioned solely by the intoxication of the employee or by the willful intention of the employee to injure or kill himself or another.”  The key word regarding intoxication and causation is “solely”.  Sole cause is a very tough burden for the employer to meet.  And not only is it a very difficult burden of proof, but the injured worker has a presumption in his favor.

Section 920(c) of the Act provides that, “In any proceeding for the enforcement of a claim for compensation under this Act it shall be presumed, in the absence of substantial evidence to the contrary, that the injury was not occasioned solely by the intoxication of the injured employee.”

So first the employer must prove that the worker was intoxicated at the time of the injury.  Then the employer must produce substantial evidence to rebut the presumption of section 920(c) that intoxication was not the sole cause of the injury.  Then once the presumption is gone from the case, the employer must persuade the adjudicator by a preponderance of the evidence that marijuana use was the sole (not the primary, but the only) cause of the injury.

Practically speaking, the employer must rule out all of other possible causes of the accident.

Now, as far as I can tell, there is nothing in the medical marijuana laws that prevents an employer from enforcing a consistently applied drug policy; even a zero tolerance policy.  So, an employer may be able to decline to hire a prospective employee who tests positive for marijuana.  And, if workers test positive for marijuana following an accident, they may be fired, suspended, or even arrested (we’ll know more when we learn the outcome of a few pending lawsuits), but under the Longshore Act the workers have the section 920 presumption in their favor, and the employer must prove that the marijuana use was the sole cause of the accident or else pay workers’ compensation benefits.

So what impact will the medical marijuana laws have on claims handling under the Longshore Act?  Probably not much.  The same provisions apply in the same manner.  Maybe more workers will fail post injury drug tests.  Perhaps the section 903(c) defense will be presented by employers in more cases.  But in the final analysis, the sole cause burden of proof is still very difficult for the employer.

Maybe the best we can hope for is that the increased use of marijuana occasioned by the state laws legalizing medical marijuana will not result in more on the job injuries.

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