Cross-Border Implications of the Canadian Cannabis Act in New York Workers’ Compensation Law

The rapid evolution of both medical and recreational marijuana creates unique issues for employers and insurers. Although this may be a statement of the obvious, it is especially true in New York, a state which shares a 445-mile border with Canada.

Recreational marijuana may soon be legal in Canada, after its Legislature approved the Cannabis Act in June of this year. The proposed law would make it legal for anyone over the age of 18 to possess marijuana in limited quantities. It also allows Canadians …

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Post-Accident Drug Testing: Part 7 — North Carolina

After every accident involving potential human error, North Carolina employers should perform a drug test. The test must enable the defense attorney to prove not only the presence of an intoxicating substance, but the concentration. Most simple urine drug screens do not provide that information.

The North Carolina Workers’ Compensation Act makes “intoxication” by illegal drugs, or legal drugs not taken as prescribed, a defense to a claim for an injury by accident. But “intoxication” is harder to prove than many realize. The defense attorney …

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Post-Accident Drug Testing: Part 6 — Pennsylvania

Under the Pennsylvania Workers’ Compensation Act, Act 44 excludes from coverage injuries that would not have occurred but for the intoxication of the employee. Mahon v. WCAB (Expert Window Cleaning), 835 A.2d 420 (Pa.Cmwlth. 2003). The burden of proof is on the employer and is two-pronged. First, the employer must establish that the employee was intoxicated either from drugs or alcohol. Second, the employer must establish that the use either caused the injury or was a major and very substantial contributing fact to the …

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Post-Accident Drug Testing: Part 5 — Connecticut

If we assume that the Occupational Safety and Health Administration’s (OSHA) commentary that mandatory post-accident drug testing will deter the reporting of workplace safety incidents, it will make it difficult for the employer/respondent to document and collect evidence to properly investigate the claim. In Connecticut, if a claimant’s intoxication, whether by alcohol or legal/illegal drugs, is a substantial contributing factor in causing a work place accident, then the accident is not compensable. See C.G.S. § 31-275(1)(C). The respondent is required to prove that the claimant’s …

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Post-Accident Drug Testing: Part 4 — Illinois

No compensation is owed under the Illinois Workers’ Compensation Act if: (i) the employee’s intoxication proximately caused the injury, or (ii) the employee was so intoxicated at the time of the accident that the intoxication was a departure from the employment. Evidence of the concentration of alcohol, cannabis, a controlled substance, or an intoxicating compound in the employee’s blood, breath, or urine at the time the accident can be used as proof that the employee was intoxicated at the time of the employee’s accident. If …

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Post-Accident Drug Testing: Part 3 — New York

The New York Workers’ Compensation Board and courts have previously accepted that an employee’s refusal to comply with an employer-mandated drug test constituted good cause for termination and a voluntary withdrawal from the labor market. In recent years, however, the Board and courts have taken a more discerning approach regarding the enforceability of employer policies which “seek to discourage their employees from pursuing Workers’ Compensation claims.” Matter of Asem v. Key Food Stores Co-Op and Matter of Rodriguez v. C&S Wholesale Grocers, Inc., 108 AD3d …

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Post-Accident Drug Testing: Part 2 — Missouri

Missouri’s drug penalty is set forth in Section 287.120 of the Missouri Workers’ Compensation Law. That section allows for reduction or forfeiture of benefits as follows:

  1. A 50 percent reduction of benefits if the employee violated the employer’s anti-drug policy, and if the injury was sustained in conjunction with the use of drugs;
  2. Forfeiture of all benefits if the use of drugs in violation of the employer’s policy was the proximate cause of the injury; and
  3. Forfeiture of all benefits if the employee refuses to
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Post-Accident Drug Testing: Part 1 — New Jersey

For New Jersey, a post-accident drug test can be helpful. In an unreported decision, the Appellate Division found that an injured employee terminated after he was placed on light duty, due to a failed drug test, is not automatically entitled to temporary disability benefits. Gioia v. Herr Foods, Inc., No. A-0667-10T4 (App. Div. Oct. 11, 2011). The employer provided testimony that it would have offered the injured employee light duty if not for the failed drug test. Since the lost income was not a …

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