Every day in the news we hear about the opioid crisis in America or a new state legalizing marijuana. These drug issues have been affecting the workers’ compensation world more and more. Whether the injured worker is taking a medication not prescribed by a doctor or if they took their significant other’s “marijuana-laced” medicine, failed drug tests are showing up frequently and can play a significant role in the case.
For an employer not following the Drug-Free workplace statute, post-accident testing is permissible if the facts suggest that intoxication or impairment from drugs contributed to the injury. Two elements are essential in prevailing on an impairment/intoxication defense. First, the facility collecting the drug test must comply with all the requirements under FL Admin Code 59A-24. Secondly, there must not be a prior positive drug test that the Employer did not act on.
Some of the big requirements of FL Admin Code 59A-24 are that: the test was completed right after the accident, the injured worker could wash their hands prior, and the room in which the test is being collected has been deemed sterile. The requirements can get very technical but most of the common urgent care, convenient care, and lab facilities know these requirements and follow them. Hospitals are, unfortunately, not as familiar with the rules regarding collection and processing specimens.
As indicated above, an injured worker can overcome defenses related to a positive post-accident drug test if there was a prior positive drug test and the employer took no action. An employer is deemed to acquiesce in drug use if an employee’s drug use or alcohol use is known to the employer and allowed. This occurs more often with intoxication cases than with use of illegal medications. If the employer has knowledge and fails to act, the employer has acquiesced. Suspension of an employee or some form of serious reprimand is enough to show that type of behavior is not acceptable but it needs to be well documented.
Even if certain elements of the intoxication/impairment defense are lacking, a positive post-accident drug or alcohol test can be used in various tactical ways. Many injured employees are fearful of a public record being created that shows he or she was using illegal drugs on the job. The employee will often want to keep the case from advancing and almost certainly do not want to go before the JCC.
The legal presumption is that the workplace accident was caused by impairment or intoxication once impairment or intoxication is proven. The presumption then shifts to the claimant to prove that his or her impairment/intoxication did not cause the workplace accident. This shifting of the burden of proof is often sufficient to convince the injured worker to settle promptly and reasonably.
Many employers erroneously believe they are a drug-free workplace as defined in the statute. Being a true “drug-free workplace” is a very onerous burden that most employers do not meet. An employer can implement a variety of policies that show intolerance for use of drugs or alcohol at work without being a true drug-free workplace. There are a variety of legal and factual defenses available when an employee is found to be impaired or intoxicated at the time of accident. The statutory requirements applicable to a true drug-free workplace are so long and detailed that we are unaware of any foreign employer that is a true drug-free workplace as defined in the statute.
The Legislative intent of the impairment and intoxication statutes is to discourage use of drugs in the workplace. Many employers impose standards where every employee is subject to drug testing after every workplace accident. Although a positive post-accident drug test will not preclude exposure for all forms of benefits, termination for a positive post-accident drug test often allows an employer/carrier to refrain from paying TPD benefits based on the employer’s ability to bring the injured worker back to work, had he not been terminated for a positive post-accident drug test. Since TPD benefits often constitute the majority of indemnity benefits paid in a claim, this can be a very potent defense that causes injured workers to settle sooner rather than later.