Your humble blogger, dear readers, is a big fan of the AMC series Mad Men.  I swear I’ve watched the entire series through at least half a dozen times and enjoyed it every run.  The first episode of the series is called Smoke Gets in Your Eyes, about the main protagonists efforts to create an advertising campaign for Lucky Strike cigarettes.

Now, why is your humble blogger bringing this up?  I assure you, no change in career from law to advertising is being announced, and, rest assured, your humble blogger’s smiling and bow-tied photo will not be replacing camels, cowboys, or any tobacco mascot. 

But while smoking poses dangers, more or less everyone seems to be aware of those now adays.  Yet there is another source of smoke that is getting in the eyes of the workers’ compensation community.  Marijuana is continuing to be an issue for comp.

Whether it is legal or not, there is, after all, some conflict between state and federal law; and whether employers can be compelled to provide to employees, on an industrial basis, marijuana as a form of medical treatment remain open questions in California. 

Unfortunately, we have a new study released by Quest Diagnostics showing that in the US Workforce in general, “testing positive for marijuana following an on-the-job accident increased to its highest level in 25 years in 2022.” 

Are workers just being tested more often than they were before, or is there a higher frequency of use of marijuana than in years past?  Furthermore, is this higher use of marijuana the cause of injuries in the workplace?  If so, Labor Code section 3600(a)(4) provides an affirmative defense to such claims, but the burden of proof remains on the defendant, and offers no defense if one employee’s marijuana-fueled injury causing harm to other employees.

As social attitudes towards marijuana continue to change, employers are placed in a difficult position of keeping employees safe while complying with California’s laws regarding marijuana use.  For example, AB-2188 was signed into law by Governor Newsom in 2022 and takes effect January 1, 2024, makes it unlawful to discriminate based on off-the-job use of marijuana. 

While the law excludes those in the building and construction trades, and also does not “permit an employee to possess, to be impaired by, or to use cannabis on the job” one of the most effective ways of ensuring employees are not under the influence of marijuana while on the job is to decline to hire employees who use marijuana recreationally at all.

As if California’s employers did not have enough to contend with, the growing instance of marijuana related injuries and the state of California’s restrictions on addressing that trend certainly don’t make things any easier.

Puff, puff pass, dear readers… straight on till next time!