SECOND QUARTER 2019
By: Randy Schroer & Joshua Stegeman
In Kansas, how should employers handle employees with pre-existing medical conditions who are using legally prescribed medical marijuana? Second, how should an insurer handle an injured employee who has been legally prescribed medical marijuana for treatment within a workers’ compensation claim?
Kansas does not yet permit medical marijuana. In the most recent session, the state legislature considered HB 2163 and SB 113 which are comparable bills providing for the legal use of medical cannabis. Both were referred to the respective chamber’s Committee on Health and Human Services and the Senate bill progressed to a hearing. But ultimately both efforts died in committee. At this time, there is no real support for legalization of medical marijuana in the legislature.
Under KSA §44-501(a)(2), the employer is able to deny or reduce workers’ compensation benefits if the employer follows certain guidelines regarding drug testing after an accident. Below are the criteria which an employer must follow to establish a valid basis to deny benefits based on a drug violation.
The results of a chemical test shall be admissible evidence to prove impairment if the employer establishes that the testing was done under any of the following circumstances:
(A) As a result of an employer mandated drug testing policy, in place in writing prior to the date of accident or injury, requiring any worker to submit to testing for drugs or alcohol;
(B) during an autopsy or in the normal course of medical treatment for reasons related to the health and welfare of the injured worker and not at the direction of the employer;
(C) the worker, prior to the date and time of the accident or injury gave written consent to the employer that the worker would voluntarily submit to a chemical test for drugs or alcohol following any accident or injury;
(D) the worker voluntarily agrees to submit to a chemical test for drugs or alcohol following any accident or injury; or
(E) as a result of federal or state law or a federal or state rule or regulation having the force and effect of law requiring a post-injury testing program and such required program was properly implemented at the time of testing.
Additionally, an employee’s refusal to submit to a chemical test at the request of the employer shall result in the forfeiture of benefits under the workers’ compensation act if the employer had sufficient cause to suspect the use of alcohol or drugs by the claimant or if the employer’s policy clearly authorizes post-injury testing. The test sample need only be collected within a reasonable time following the accident or injury. A split sample sufficient for testing must be retained and made available to the employee within 48 hours of a positive test. If it is shown that the employee was impaired at the time of the injury, there shall be a rebuttable presumption that the accident, injury, disability or death was contributed to by such impairment. The employee may overcome the presumption of contribution by clear and convincing evidence.
Since no legislation has been enacted by the Kansas legislature to allow for medical marijuana, employers may continue to adhere to the drug-free testing policy and violation procedure outlined above to justify denials for the use of drugs in conjunction with a work-accident. We encourage employers to make sure they drug-free testing policies are clearly established and in writing with notice to the employees of the policy prior to the workers’ compensation accident to be effective.