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Understanding the Implications of an Employee’s Positive Post-Accident Drug or Alcohol Screen
It is standard operating procedure for many companies to require a drug and alcohol screen immediately after an employee is injured on the job. If your company does not mandate post-accident drug and alcohol screens, it is definitely time to start! It is simply essential in this day and age to have workplace policies and procedures in place to ensure a drug free and safe workplace. Furthermore, as noted below, a positive drug or alcohol screen may be the difference between an allowed claim and a disallowed claim.Consider this scenario: An employee reports a work injury in accordance with company policy and, in further accordance with company policy, submits to a mandatory drug and alcohol screen. A workers’ compensation claim is then filed and within a few days you receive the employee’s drug and alcohol test results. You may or may not be surprised to see that this particular employee tested positive. Is a positive test alone enough to deny a workers compensation claim? The answer, unfortunately, is no. All is not lost, however.
An employer must overcome four statutory hurdles to create a “rebuttable presumption” that the employee’s intoxication was the cause of his industrial injury. If the employer can get past these hurdles, the employee then essentially has the burden to prove that his intoxication was not the cause of the injury.
First, before a workplace injury even occurs, the employer must be in compliance with the statutory requirement of written notice informing employees that the failure of or refusal to submit to a drug test may affect their eligibility for compensation for injuries. This notice must be posted in the same location as the BWC certificate of premium payment or certificate of self insurance. It must also be at least the same size as these certificates.
Second, a positive qualifying chemical test must obviously be obtained. The test must be the correct type and exceed the positive test levels established by statute. Furthermore, a test for blood alcohol level must be administered within eight hours of the injury. A drug test must be administered no later than thirty-two hours after an injury.
Third, the employer needs to demonstrate that “reasonable cause” was present to require that the injured employee undergo a post-accident drug and alcohol screen. This is the most difficult hurdle, and employers often cannot overcome the same. The focus is always on the employer’s suspicion that the employee was under the influence of alcohol or a controlled substance at the time of his injury. Documentation and testimony would be necessary to prove the suspicion at a hearing before the Industrial Commission of Ohio. Reasonable suspicion can be the observed use, possession or distribution of alcohol or a controlled substance or reported use of such from a reliable source. It can also result from a noticeable pattern of abnormal conduct, erratic behavior or deteriorating work performance; this can include excessive tardiness or recurrent accidents that appear to be related to drug or alcohol use and do not appear to be caused by anything else. In addition, it can include an employee’s repeated or flagrant violations of safety or work rules, or if the employee is the focus of a criminal investigation of a controlled substance.
What if “reasonable cause” was not present or cannot be adequately proven? The above-referenced standard can be bypassed if the post-accident drug or alcohol screen was at the request of a police officer or a licensed physician that is not the employer’s physician.
Lastly, if the employer is able to meet all of the statutory requirements delineated above, there is one more significant hurdle to overcome. By successfully creating a “rebuttable presumption,” the burden will shift to the injured employee to prove that his intoxication was not the cause of the injury. At this point, the employer must also be able to prove that the injury would not have occurred had the employee not been under the influence of drugs or alcohol. The only way to show this is through an expert medical opinion. A physician needs to review the test results and the accident description and offer an opinion as to whether the employee’s intoxication caused the accident. If the Industrial Commission sides with the reviewing physician, the employee’s claim will likely be disallowed.
As you can see, a positive drug or alcohol screen, in and of itself, is just not enough to get a claim disallowed. The hurdles discussed above are daunting and many times cannot be overcome by an employer. It is often very difficult to prove reasonable suspicion prior to an injury. Many times, a good worker with no prior issues tests positive and the positive drug or alcohol test is an absolute surprise. What can be done about the situations where an employer is unable to overcome these hurdles and create a “rebuttable presumption?”
Under Ohio law, an injury is clearly not compensable if it is directly caused by an employee’s intoxication. Furthermore, employers may still require and conduct post-accident drug or alcohol screens without any prior suspicion of an employee’s drug or alcohol use. Therefore, a positive screen paired with an expert medical opinion opining that the employee’s intoxication caused the accident may be enough to disallow a claim, thereby bypassing some of the hurdles described above. This difficult burden is obviously on the employer and can be rebutted by the employee. However, it is important to realize that all is not lost if a positive drug or alcohol screen takes you by complete surprise.
It is important to have well-established workplace policies and procedures in place to combat drug or alcohol use on the job by your employees. Please do not hesitate to contact Nick Phillips at HR Department Unlimited for information on implementing a drug free workplace program. Additionally, Tricia, Tony or any of the other workers’ compensation attorneys can offer advice when it comes to fully understanding the implications of a positive post-accident drug or alcohol screen.