“The ceiling falls in on me, and I get tested as a result of it… Now I have it in my system, and they’re going to cut my benefits by 50 percent. That is possible under this bill, correct?”
By Rebecca Rivas, Missouri Independent
If Missouri employees ask for workers’ compensation after an on-the-job injury, employers can require them to take a drug test for marijuana.
If they test positive—even if they hadn’t consumed marijuana for days—their compensation and death benefit may be reduced by 50 percent.
That didn’t change when Missouri legalized recreational marijuana because it’s still a controlled substance on a federal level, two Republican state lawmakers told a House committee Wednesday.
But if the federal government legalizes marijuana, “then people could literally smoke pot on the job in Missouri and there would be no prohibition against that,” attorney Bradley Young, a workers’ compensation attorney from Chesterfield, told The Independent Thursday morning.
Republican Reps. John Voss of Cape Girardeau and Sherri Gallick of Belton are trying to etch the current policy into state statute so it can remain in place if federal law changes.
They both said their legislation, drafted by Young, is meant to address intoxication on the job.
“I have some people that live close to me who are in this business,” Gallick said, referring to owners of a marijuana facility. “And as a business owner, they want to make sure that everything is done correctly. They want to make sure their businesses are protected.”
Both of the bills add marijuana to Missouri’s workers’ compensation law, which outlines a drug-free workplace rule. Currently the law states employees will lose 50 percent of compensation “if the injury was sustained in conjunction with the use of alcohol or non-prescribed controlled drugs.”
Under the state constitution, marijuana is no longer a “non-prescribed controlled drug,” Young said, but it’s still a federally controlled substance.
Gallick’s bill makes an exemption for medical marijuana patients who are following a doctor’s prescription, but Voss’s bill does not. Sen. Mike Bernskoetter, a Republican from Jefferson City, has also introduced a bill that mirrors the language in Voss’s legislation.
Both bills faced pushback from Republicans and Democrats on the House Insurance Policy Committee Wednesday.
Rep. Richard West, a Republican from Wentzville, said he understands the need to test everyone involved in an accident, as a former police officer for 20 years.
“My biggest problem with this bill, though, is the non-impairment part of it, meaning we really don’t have the science to say at what point you are impaired,” West said, when it comes to marijuana.
West gave the scenario of taking a marijuana-infused gummy on Saturday night to help him sleep. He doesn’t take it Sunday night, and then goes into work on Monday completely unimpaired.
“The ceiling falls in on me, and I get tested as a result of it,” West said. “Now I have it in my system, and they’re going to cut my benefits by 50 percent. That is possible under this bill, correct?”
Ray McCarty, president and CEO of the Associated Industries of Missouri who was speaking in favor of the bill, said that’s the current policy and marijuana would continue to be treated the same as alcohol.
Currently, if employees test below the intoxication level of alcohol of .08 percent, they still could have their benefits reduced.
West countered that it’s different because a person wouldn’t test positive on Monday if they consumed alcohol on Saturday, but they would with marijuana.
McCarty replied: “There’s no medical evidence that if you have it in your bloodstream that you are not somehow affected.”
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Rep. Jeff Coleman, a Republican from Grain Valley, said he didn’t realize the current law reduced workers’ benefits, even if they were not at fault in an accident.
“This is new to me,” he said. “I have a little issue with that part of it… If it’s determined to be no fault, I don’t think that there should be a reduction in their benefit.”
In his 30 years as a workers’ compensation defense attorney, Young said he’s never once seen a situation where a judge reduced benefits because someone smoked pot days or weeks ahead.
“There is no example of that,” Young said. “We know that people are using drugs in conjunction with their work activities. That is a far greater problem than the hypothetical problem that exists regarding the person who smokes pot a week before he is injured on the job.”
Several legislators criticized the current testing methods for determining marijuana impairment.
“I just know it tests positive in your system for infinitely longer than alcohol,” said Rep. Steve Butz, a Democrat from St. Louis. “There’s a big difference. It could be three weeks ago that anybody did anything.”
“If we don’t have a threshold set at what impairment actually is, are we going to tell people they can’t partake in a totally legal entity within our state in their private time?” West said.
Committee members asked when more efficient testing will be available.
Young told The Independent he represents a construction company in St. Louis that purchased expensive technology to determine if THC is active in a person’s body, as opposed to testing a person’s metabolites.
“The technology is there,” he said. “I’ve seen it. Next year it will be half the size and half the cost.”
Photo courtesy of Chris Wallis // Side Pocket Images.
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