Recent Ohio Supreme Court case Cordell has implications for all those who test positive for marijuana (and other substances: alcohol/opiods/hallucinogens/etc) in a post accident drug screen. I discuss the case in detail in a short youtube video which you can view here.
The Rule from Cordell regarding testing positive for Marijuana is the following:
(1) discovery of the dischargeable offense occurred because of the injury and
(2) the employee was medically incapable of returning to work a result of the workplace injury at the time he/she was terminated
Cordell fractured his tibia/fibular falling in a dock at work.
A day after the injury he underwent a post accident drug screen whereby he tested positive for marijuana.
He was terminated for violating his employer’s written workplace policy against the use of marijuana.
Employer conceded that marijuana did not cause the work injury. That is the injured worker was not under the influence of marijuana at the time of his work injury. This is IMPORTANT because there is a rebuttable presumption that marijuana caused the work injury if there is a certain amount of cannabanoids found in an injured workers blood stream. REBUTTABLE PRESUMPTION means its accepted as truth, but the injured worker can argue that evidence shows(testimony/witness statements) that marijuana did not cause the injury.
1.) The Court did not questions employer’s termination of Cordell. Ohio is an AT WILL work state. The employer terminated Cordell for a non-discriminatory reason.
2.) However, even though Cordell tested positive for marijuana, he still may receive temporary total disability compensation because Cordell was physically incapable of working at the time of his injury (i.e. his legs were fractured at the time of his termination).
1.) You may be fired.
2.) You may be entitled to temporary total disability compensation –> if use of weed did not contribute to your work injury
3.) You may not be entitled to temporary total disability compensation –> if use of weed did contribute to your work injury
Malek and Malek does not condone the use of marijuana, but we believe the Ohio Supreme Court came to the correct conclusion in Cordell. Had the Ohio Supreme Court gone the other way, it would have had a chilling effect on workers’ comp claims. Its an accepted fact that some individual’s choose to smoke marijuana. However the fact that someone smoked a joint over the weekend or the night before a workday should not be used as ammunition to deny temporary total disability.