By Yvette Farnsworth Baker, Esq.
This information is provided for educational purposes only.  Reader retains full responsibility for the use of the information contained herein.

Many states incentivize employers to implement workplace drug testing by offering a discount on workers’ compensation insurance to workplaces with a drug testing policy. Aside from this discount, workers’ compensation issues are still a great reason to implement workplace drug testing.

The Basics

Most state laws explicitly allow denial of workers’ compensation claims if the accident or injury was caused by the employee’s intoxication by drugs or alcohol. Some regulations are more specific than others. Michigan, for example, permits denial of benefits if the employee is injured due to his “intentional and willful misconduct,” with no particular mention of drugs or alcohol. Most states, however, identify drug or alcohol use as a particular basis for denial of workers’ compensation benefits.

Workers’ Compensation Denial: A Case Study in Florida

Some states have enacted laws to make it easy for employers who properly drug test to deny workers’ compensation benefits. A clear example is Florida law. Florida law permits benefits denial if the injury was “primarily” due to the employee’s intoxication or drug use. For an employer, proving that intoxication was the “primary” cause of an accident or injury can be difficult. However, Florida law also provides that if the employee tests positive for drugs, then “it is presumed that the injury was occasioned primarily by . . . the influence of the drug upon, the employee.”

This “presumption” is extremely beneficial to employers. In practical terms, this means that if an employee is injured and tests positive for drugs, the employer is the permitted to assume that the injury was primarily caused by drug use, with no other evidence than the positive drug test. If the employee wants to challenge the denial of benefits, the burden is on the employee to put forth proof that drug use was not the primary cause of the accident. This makes it much more difficult for employees to challenge the denial of benefits, and much easier for employers to prove misconduct. Approximately 13 states’ workers’ compensation regulations contain provisions that permit a positive drug test to serve as proof that a workplace injury was caused by drug use.

Additionally, Florida in particular offers additional benefits to employers who have established drug-free workplaces (meaning, drug testing policies that conform to the state’s voluntary standards). If an employer has a drug-free workplace and an injured employee tests positive for drugs, the employee must prove that there is no reasonable hypothesis that drugs contributed to the injury. This means that if an employee wants to challenge denial of workers’ compensation benefits in this scenario, he would have to offer proof that there is no reasonable possibility that drugs even contributed to the injury. This is an even higher standard than proving that drugs were not the primary cause of the injury. Proving there is no reasonable hypothesis that drugs contributed to the injury is nearly the highest burden of proof in law, akin to proving a person’s guilt in criminal court beyond a reasonable doubt.

Conclusion

First and foremost, employers should implement workplace drug testing to protect the safety of their workplace and the integrity of their business. However, it is certainly an added benefit to ensure that employers who strive for drug-free workplaces will not be financially responsible for workers’ compensation injuries that drug-using employees bring on themselves.

(C) 2010-2018 The Current Consulting Group, LLC – No portion of this article may be reproduced, retransmitted, posted on a website or used in any manner without the written consent of the Current Consulting Group, LLC. When permission is granted to reproduce this article in any way full attribution to the author and copyright holder are required.

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