In January 2017 Nevada joined a handful of other states in decriminalizing recreational marijuana use. NRS 453D.010 et seq. Legalization has raised a number of interesting employment-related legal questions. Workers who use marijuana recreationally should take time to understand how marijuana use interacts with workers’ compensation coverage.
Decriminalization of marijuana left other prohibitions in place
Perhaps the most important thing to bear in mind about Nevada’s recreational use statute is that it only eliminated certain criminal penalties for possession and use of marijuana. It does not require employers to no longer test employees for marijuana use. Nor does it change the way workers’ compensation insurers use evidence of drug use to deny claims.
Nevada’s workers’ compensation statute provides that an insurer can deny a workers’ compensation claim if the injury “occurred while the employee was under the influence of a controlled or prohibited substance.” NRS616C.230(1)(d). The test to determine if an employee was “under the influence” of marijuana is the same as the test used to determine liability under DUI laws: 10 or more nanograms per milliliter in a urine sample, or 2 or more nanograms per milliliter in a blood sample. NRS 484C.110. The law provides an exception for workers who have lawful prescriptions for medical marijuana.
As decriminalization matures it will be interesting to see how insurers go about proving that a worker was under the influence of marijuana. Unlike drivers, who are deemed to provide implied consent for a blood test to determine intoxication during a traffic stop, an injured worker might not have a blood or urine sample taken. On the other hand, an insurer might use information from a manager or other employees to infer that the employee had recently used marijuana at the time of the injury.
Overcoming a denied claim
An employee whose claim is denied can overcome the denial only by showing clear and convincing evidence that being under the influence of marijuana was not the proximate cause of the injury.
Nevada’s “clear and convincing” evidence standard calls for proof showing that the claim is highly likely to be true. In technical terms, clear-and-convincing is a higher standard than the “preponderance of the evidence” standard applied to many questions of proof in civil lawsuits. Albert H. Wohlers & Co. v. Bartgis, 114 Nev. 1249, 1260 (1998). The preponderance test only asks whether evidence for one proposition outweighs the evidence for the arguments against it. “Clear and convincing” requires something more, which can be a difficult standard to meet depending on the facts and the kinds of evidence available.
The proximate cause test asks if the worker’s injury would not have taken place but for the marijuana use. Each case will require a careful legal analysis to determine if this connection can be broken through clear and convincing evidence. Some cases will be easier than others. For example, if a worker is injured by an object that falls from above, the fact that the worker had smoked marijuana the night before might not be a proximate cause of the injury. On the other hand, if the worker smoked marijuana in the morning and stumbled into a ditch, the worker may have difficulty showing that the drug’s influence didn’t lead to the fall.
Contact GGRM to discuss your options
The intersection of workers’ compensation law and recreational marijuana involves tricky issues that need expert analysis. If you have had a workers’ compensation claim denied because of recreational marijuana use, you may have legal options available to you. The attorneys at GGRM have helped workers’ compensation clients in the Las Vegas area for over 45 years. For a free attorney consultation call us at 702-388-4476, or request a call through our website.