With the increasing number of states legalizing marijuana, it's clear that it will have an effect on the workplace injury compensability. While marijuana as a treatment for chronic pain has become a hot topic, a lesser known way in which marijuana can complicate the workers' compensation system is less discussed: intoxication.

Intoxication is an affirmative defense to compensability. Labor Code 3600(a)(4) states that "an injury is not compensable when it is caused by intoxication, by alcohol or the unlawful use of a controlled substance, by the injured employee." Asserting the affirmative defense of intoxication places the burden on the employer to demonstrate the following:

  1. The employer must demonstrate that the employee imbibed or ingested one or more intoxicants.
  2. The employer must prove the employee was intoxicated.
  3. The employer must establish a cause and effect relationship between employee's intoxication and a resulting injury.

As you can probably tell by first blush of the above elements, this is a difficult burden to meet when dealing with marijuana intoxication.

The first issue is that, unlike alcohol or other drugs, marijuana can stay in the system for 30 days making it difficult to determine whether the worker was "high" when the accident occurred or merely used weeks prior. Further, there is no reliable test for marijuana intoxication.

Second, this defense hinges on proving that the employee was indeed intoxicated at the time of injury. Courts have been exceedingly strict on this element. Most appellate courts have been consistent in annulling awards only when there is direct credible, uncontradicted evidence that the employee was intoxicated, that such intoxication was the primary cause of the injury, and no competent evidence exists that is in conflict with it.

Finally, the drug is still considered a Schedule 1 substance. Although marijuana can be lawfully obtained by medical prescription, it is still limited under state laws intended to eliminate or avoid substance abuse in view of the known potential of some substances to form or sustain an addiction. In a case where intoxication is a defense, the employer would have to prove use was unlawful, improper, or negligent use is not necessarily an illegal use.

Although marijuana's recreational prevalence has increased with its state-based legalization, marijuana intoxication is still difficult to prove.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.