When to Drug Test

Wednesday, July 25, 2012 | 0

A colleague recently presented a new claim she encountered.  A client’s employee was involved in a trucking accident (that same day).  The accident was bad.  The cab flipped and crushed.  The employee was undergoing emergency surgery.

However concerned the employer was for the injured worker, there was additional concern that the employee was under the influence.  The employer is not a drug-free workplace as defined by Section 440.101 and therefore did not have a testing program in compliance with S. 440.102.

What is an employer to do in a situation like this?  What rights does it have to drug test an injured worker? 

The answer is found in Section 440.09(7) which mandates the requirements for testing injured workers in terms of determining compensability.  If an employer qualifies as a drug-free workplace then there is already a system in place to test the injured worker and apply the chain of custody to prove the test conformed with the Florida Administrative Code 59A-24.

It is important to recognize that the Admin Code is very specific as to how an employer is to handle drug testing.  That is why employers contract with a vendor that collects the samples and sends them to a lab while insuring the chain of custody does not break. I’ve handled chain-of-custody cases before and the requirements are onerous and very specific.  It is definitely a practice of form over substance.  This is done to insure the integrity of the testing process and to remove any doubt of a false positive. 

An employer should NOT attempt to test on its own.  The process is too complicated and onerous for an uneducated party to perform.  A simple mistake in labeling or sealing sample can void the entire test.   And, the key to drug testing is to get the first test right so insure it captures employees blood-alcohol level as close in time to the accident.   A voided test means a second test will be further in time and not reflect the employee’s condition at the time of the accident.

But, what if the employer is not a drug-free workplace?  Can they still test, like in the example my colleague presented?  Yes, per S. 440.09(7)(a), an employer can still test for drugs if they have “reason to suspect the injury was occasioned primarily by the intoxication of the employee.” If the employee refuses the test, then it shall be presumed that the employee’s intoxication caused the accident and injuries. The employee can overcome this presumption with clear and convincing evidence otherwise.

However, it is important to note even if an employee tests positive for drugs or alcohol she can overcome the presumption that drugs contributed to the accident by presenting evidence that the accident would have occurred regardless of her inebriation.

So, in the example I presented (a trucking accident) and employer needs to look at the police report. If the another driver swerved into the truck’s lane causing the accident, then it is less likely a positive drug test will deny compensability.

At that point, is it worth it to pursue a drug test if the employee is going to refuse?  This would lead all parties down a litigious road where the employee is likely to win on the strength of the police report. It's a bitter pill to swallow (all apologies for the terrible pun), but an Employer needs to weigh the costs of litigation versus the benefits of a drug test.

In summary, a non-drug free workplace employer can demand a drug test, post accident. However, look at the circumstances and mechanism of the accident to assess whether drugs or alcohol played a part at all.

<i>Michael Rabinowitz is a shareholder with the Banker Lopez Gassler workers' compensation defense law firm in Tampa. This column was reprinted with his permission from his Workers' Comp Corner blog.</i>