Thomas Robinson wrote a good post where he predicted the legalization of recreational marijuana could lead to less post-injury drug testing.

I live in Nebraska. For the present, legalized recreational marijuana is as a realistic prospect as Pete Ricketts with hair. But even if Nebraska legalized marijuana, I doubt it would decrease post-injury drug testing in this state. Here is why I believe so:

Drug testing, occupational medicine and doctor choice

In short, getting drug tested at an occupational medicine clinic is a way to prod employees to let employers control their medical care. After an injury, many major employers in Omaha or Lincoln send their injured workers to occupational medicine clinics for a drug test. Of course, once the employee is at a clinic for a drug test, it seems convenient to get treatment at that clinic.

I’ve stated before that employers like to use drug testing to reinforce their power in the employee-employer relationship. Drug testing is just one of the many ways that employers and insurers use their power to minimize what they need to pay out in workers’ compensation claims.

Drug testing and drugs besides marijuana

So even if marijuana is legal and it’s difficult to use testing to prove impairment, employers can still test for alcohol and other drugs whether legal or illegal. Sometimes doctors will order drug testing to ensure sobriety from certain substances before a surgery or other procedure. As invasive as such an order may be, if it’s in the context of a workers’ compensation claim, a judge will likely be inclined to let that testing proceed.

What about the OSHA drug testing rule?

OSHA implemented a rule 2016 and clarified in 2018 that could limit post-injury drug testing. But the OSHA rule has exceptions if the drug testing is used as a way to get a discount for workers’ compensation insurance or as investigation into an accident. I think the rule is fairly weak. But even if an employer is sanctioned by OSHA, fines are relatively small for major employers and employees lack a way to sue employers directly for a violation of OSHA rules.

In theory, an employee fired for failing a post-injury drug test could have a retaliation case. After all, but for the employee claiming workers’ compensation they wouldn’t have been drug tested which lead to them being fired. In practice, some courts are finding that merely being injured isn’t enough to invoke the protections of anti-retaliation laws. Some courts could also find that failing a drug test to be a legitimate, non-discriminatory reason to be fired.

Changing the power dynamics between employee and employer

The bottom line is that legalized marijuana will do little if anything to change the imbalance of power between employee and employer. Without laws that provide more protections to employees, employers will continue to test employees for drugs and employees will continue to face consequences for violating drug and alcohol policies – even those that have nothing to do with their employment.