The minutes and hours after a work injury are stressful. You’re shocked and in pain, worried about your health and your financial future.
As if those concerns aren’t enough, your employer may ask you to immediately take a drug test. There is no requirement that your employer tests you for drugs after a workplace accident. But many do.
If you’ve used drugs recently, having to take a drug test can cause even more anxiety. You may be wondering whether you should file a workers comp claim if your test is positive.
This article explains how to get workers comp if you fail a post-incident drug test. You may still qualify for wage loss payments and medical coverage and could negotiate a workers compensation settlement.
Keep reading to learn more.
If you have more questions about your situation or would like a free consultation with a top-rated workers compensation attorney, call today: (804) 251-1620 or (757) 810-5614. See why my fellow attorneys have voted me one of the best personal injury lawyers in Virginia.
A drug test is a technical analysis of bodily fluids that detects alcohol, illegal drugs, and certain prescription drugs.
No – in most cases.
Though the federal government requires employers in specific industries to drug test, there is no federal law that forces employers outside of these industries to give drug tests to potential or current employees.
Yes.
Section 1904.35(b)(1)(iv) of Title 29 of the Code of Federal Regulations allows employers to drug test employees who report work-related injuries or illnesses.
Similarly, the Commonwealth of Virginia does not ban the drug testing of employees. Employers may implement a drug-free workplace.
On October 11, 2018, the Occupational Safety and Health Administration (OSHA) issued a memorandum clarifying its position on workplace safety incentive programs and post-accident drug testing policies.
OSHA’s Rules and Regulations do not prohibit workplace safety incentive programs or post-accident drug testing. Instead, OSHA believes that incentive programs and post-incident drug testing can promote workplace safety and health.
OSHA states that the following types of drug testing are lawful:
Post-accident drug testing is unlawful only if used to discipline employees or discourage them from reporting job-related injuries and illnesses.
Maybe.
OSHA has said that employers do not have to give post-accident drug tests to every employee who reports an injury or illness. Your employer doesn’t have to administer a drug test if it’s unlikely that alcohol, illicit drugs, or prescription drugs caused the incident.
If you believe your employer retaliated against you after the work injury, call an employment lawyer immediately.
No.
In Virginia, workers’ compensation laws do not require drug testing to get lifetime medical coverage, temporary total disability, and permanent partial disability. But they encourage it through financial incentives.
Under Virginia Code Section 65.2-813.2, insurance companies must give a premium discount of up to five percent to every employer that implements and maintains a drug-free workplace program.
A trained collector will conduct your drug test.
You may take the drug test at your workplace or home, or a medical office or certified laboratory.
There are several ways to test for drug use.
Different medical providers, employers, insurance carriers, and third-party administrators (Sedgwick, Gallagher Bassett, etc.) use different drug test methods. You don’t get to choose the type of test.
The most common forms of drug testing include:
According to the Substance Abuse and Mental Health Services Administration (SAMHSA), drug tests commonly look for five categories of drugs:
Other substances that drug testing may detect :
Your employer must pay for any post-accident drug testing it requests.
You may be able to receive workers compensation benefits, even if your post-injury drug test is positive.
Workers compensation is a no-fault system. Benefits are payable even if your negligence caused the workplace injury.
There are, however, some exceptions to this rule. In Virginia, Code Section 65.2-306 lists these exceptions.
Under state workers compensation laws, you or your family cannot receive benefits for an injury or death caused by your intoxication or use of a nonprescribed controlled substance.
A positive test for drugs or alcohol after an accident does not exclude coverage automatically. Your employer must prove two things to raise the defense successfully.
First, the employer must prove that you were intoxicated or using a nonprescribed controlled substance at the time of your injury.
The Workers Compensation Commission will presume that you were intoxicated due to the consumption of alcohol or using a nonprescribed controlled substance at the time of the injury if:
A. Your post-injury drug test showed bodily fluids in an amount equal to or greater than the standards outlined in Code Section 18.2-266. That statute says that it is unlawful to operate a motor vehicle with a blood alcohol concentration of 0.08 percent or more, 0.02 milligrams of cocaine per liter of blood, 0.1 milligrams of methamphetamine per liter of blood, 0.01 milligrams of phencyclidine per liter of blood, or 0.1 milligrams of 3,4-methlenedioxymethamphetamine per liter of blood.
B. Your post-injury drug test is performed by a SAMHSA certified laboratory and yields a positive result for a nonprescribed controlled substance.
However, this presumption is rebuttable. For example, you can overcome a positive drug test and the view that you were intoxicated or under the influence of drugs at the time of the injury by testifying that you used drugs at a different time and offering evidence on the amount of time a drug stays in the user’s name. Though the exact time depends on the dosage and your age, weight, sex, and physical condition, the average times that drugs will show up in a urine drug test are:
You should also evaluate the chain of custody for your drug test and review the results for accuracy.
If you did not have a post-incident drug test, the employer could still allege that you were intoxicated at the time of the injury through witness testimony. But it’s much more difficult to prove.
Second, the employer has the burden of proving that intoxication or drug use caused the accident. Otherwise, your injury is still compensable.
Suppose you were intoxicated while lifting boxes at work when a co-worker drops a heavy object on your head, causing a concussion and neck and back injuries. You could still receive benefits in this situation because your co-worker’s mistake was the cause of your injury, not your intoxication.
You’ve convinced the workers comp judge that you were not intoxicated or under the influence of drugs at the time of the accident, or that your intoxication did not cause the injury. You may think you no longer have to worry about the positive drug test.
Unfortunately, that’s not true in many cases.
When an employer’s stated policy is to have a drug-free workplace and enforces that policy, the employer has “justified cause” to terminate an employee who tests positive for drug use after a job-related injury.
This finding is significant under workers compensation laws for two reasons.
First, you cannot cure a termination for justifiable cause.
Second, if your doctor releases you to light-duty work, you may forfeit the right to wage loss benefits if the employer offered a job within your restrictions or has evidence that it could have done so if you passed the drug test. You can still receive medical care at the employer’s expense, but you will receive wage loss benefits only for the periods that you’re disabled from all work.
Usually, this is not a problem in cases involving catastrophic injuries such as total limb amputations, traumatic brain injury, skull fractures, and spinal cord trauma resulting in paralysis or the need for spinal fusion. That’s because your orthopedic surgeon or neurologist will likely disable you from all work. But it is a potential problem if you’re released to light-duty. You must present evidence that the employer had no light-duty available and that It would not have been able to offer it.
Refusing to comply with your employer’s drug testing policy and complete the test may cause problems if your employer terminates you for non-compliance.
A termination based on refusing to complete a drug test is considered a discharge for cause under workers comp. You will forfeit wage loss benefits if the employer proves it could have offered light-duty within your restrictions.
Though meant to be more user-friendly than the civil court system, the workers compensation claim process is complicated.
This is particularly true if you fail a post-accident drug test. You can expect the employer and the insurance carrier to deny your case, and you should prepare for trial before the Workers Compensation Commission.
Fortunately, you don’t have to do this alone. I can help. I’ve won cases and negotiated workers compensation settlements for injured workers going through the same situation you now face.
Call (804) 251-1620 or (757) 810-5614 to see why my fellow attorneys and past clients have voted me one of the best accident attorneys in the state.