Do we have to file a workers' compensation claim for an employee injured on the job and who tested positive for marijuana?

Yes. Failure to file/process a claim may subject the employer to a penalty.

The employer may be entitled to a defense, but the employee should still be given a workers’ compensation claim form, and the employer must meet its reporting obligations.

When an employee is intoxicated by alcohol or drugs at the time of the injury, it is considered to be an affirmative defense to his/her workers' compensation claim, and as a result, may bar compensation to the applicant. That is determined by a judge, however, not the employer.

The employer must prove the impact of alcohol/drugs on the injury at the time of trial; therefore, it is critical to gather as much evidence as possible at the time of the injury.

Employers should be aware that, effective January 1, 2024, California prohibits discrimination on the basis of an applicant’s or employee’s off site and off-duty use of cannabis. Employees may still conduct drug testing for cannabis, but the test must be a valid screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites. Employers screening for cannabis should work with their legal counsel and testing providers to ensure they are in compliance with California law.

It also is possible that the use of drugs/alcohol may not be a direct cause of the accident, or even the injury. But the intoxication may be grounds for "apportionment" — in other words, the workers' compensation amount the employee receives for the injury will be reduced accordingly. Or the drugs/alcohol may have nothing to do with the injury and the employee will be entitled to full coverage.

Any reasonable doubt as to applicability of coverage generally is resolved in favor of coverage.

When an employee tests positive for drugs/alcohol after a work-related injury, conduct a timely and full investigation in preparation for future hearings.

The fact that the adult use of marijuana is legal in California is irrelevant. As with alcohol, an employer can continue to enforce policies prohibiting marijuana use in the workplace.

You can find more information in the What To Do when an Injury Occurs section of the HR Library.