Once again, sufficient compliance with the drug-free workplace policy rules by employers and medical review officers is not enough.

The claimant suffered a back injury, which he reported immediately to his supervisor. He was sent for a post-accident drug test and tested positive for THC. The employer denied the claim in its entirety due to their drug-free workplace policy (DFWP).

The claimant is an honorably discharged veteran, who sustained multiple injuries while in the service. In August 2020, he was evaluated by Dr. Tamar and obtained a “recommendation” for medical marijuana due to anxiety.

When the claimant was hired by the employer in July 2021, he acknowledged the DFWP policy and was sent for a pre-employment drug test. The drug test results were negative, and for some reason, the employer does not test for THC prior to employment. The claimant did not ask nor did he tell the employer about his medical marijuana card.

The claimant believed that his use of medical marijuana via a valid card issued by the state of Florida would fall under the category of a prescribed drug under the DFWP policy.

Following his positive post-accident drug test, the claimant spoke to the medical review officer (MRO). The claimant was asked to send his medical marijuana card but was never provided with an email address to do so. However, the employer would not have accepted that as a reasonable explanation in the claim and he would have been terminated for violating their policy.

The judge of compensation claims made the following findings: 

1. The claimant was a “qualified patient” and Dr. Tamar a “qualified physician” under Florida Statute 386.986(1);
2. The claimant was in possession of a valid medical marijuana card when injured; 
3. The claimant was legally using medical marijuana prior to and during his employment; 
4. The employer knowingly elected not to test for THC during the pre-employment drug testing, but intended to test for same in any post-injury drug test;
5. The claimant sustained a work injury and timely reported same;
6. The claimant was a truthful and credible witness at final merit hearing; 
7. The claimant fully complied with post-injury actions, including reporting and drug testing and following up with the MRO; 
8. The claimant’s belief that his prescribed medical marijuana was excusable was found to be understandable and reasonable; 
9. The claimant’s testimony was found more credible than Dr. Portnoy’s, but only regarding the verbal notice of his positive test and the doctor’s lack of follow-up when the claimant asked to be able to provide proof of his medical marijuana card.

The judge ultimately ruled that the employer did not fully comply with all of the DFWP requirements under section 440.102 because its policy did not contain a representative sampling of the name, address and phone numbers of local drug rehab programs. Further, the policy did not comply with the portion of the statute that requires positive confirmation of the test result to the employee in writing. Dr. Portnoy placed the review on “medical hold” pending receipt of the medical marijuana card. When the card was not received, the doctor reported the positive drug test. 

The judge went on to say that the statute is expressly designed to allow a claimant to provide written notification to the MRO within five days after receipt of written notice of a confirmed positive result. That did not occur in this case. The judge further found that the employer’s policy of not testing for THC pre-employment did not comply with the statute. The judge wrote that it was logical for an average employee to reasonably believe that legally prescribed marijuana would not violate the employer’s policy if the employee passed the pre-employment drug test.

As a result of all of the above, the judge found that the presumption did not apply. The burden then shifted to the employer to prove, by the greater weight of the evidence, that the work-related injury was caused by the employee’s intoxication. The judge found that, that burden was also not met.

The First District Court of Appeals affirmed the lower court’s decision without a written opinion. 

_{What’s Hot in Workers’ Comp, Vol. 28, No. 11, November 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}