Can You Still Claim Workers Comp After Failing A Drug Test?
It's difficult to know how often drugs play a role in workplace injuries. There's a commonly cited statistic that claims that 38% to 50% of workers compensation claims involve drugs or alcohol, but some experts dispute that statistic, arguing that the real percentage is much lower, and the source of the 38% to 50% statistic is unclear. Regardless of the real numbers, it is true that at least some employees will test positive for legal or illegal drugs in a post-injury workplace screen. However, workers should be aware that a positive result does not necessarily rule out the possibility of collecting workers compensation.
When Can You Be Drug Tested?
One thing that employees should be aware of is the new Occupational Safety and Health Administration (OSHA) standard that addresses when drug testing should occur. Although many employers have routinely administered drug tests after any accident, OSHA's new standards say that blanket drug-testing after accidents can discourage employees from exercising their rights to report workplace injuries.
Therefore, to comply with OSHA, drug tests should only be administered when there's some reasonable reason to believe that intoxication might have contributed to the accident, and when drug testing can accurately identify whether or not the worker is impaired. These new rules took effect as of January 1st, 2017.
What does that mean for workers? Because the OSHA standard calls for drug-testing only when it's reasonable to believe that intoxication may have contributed to the injury, you may not be drug-tested at all for injuries that clearly have no relation to intoxication. For example, if you claim worker's compensation for carpal tunnel syndrome, a repetitive injury developed over time, you shouldn't be drug-tested at all, since drug or alcohol use can have no bearing on whether you develop carpal tunnel.
What Happens When You Test Positive?
Even if you are drug-tested after a workplace accident, you may not necessarily be denied for workers compensation benefits if you test positive, or if you are denied, you may have grounds for an appeal.
For example, if you're injured in a car accident while you're on the clock and you test positive for drugs or alcohol, your worker's compensation claim may be denied, at least initially. But if you're found to be not at fault for the accident, a workers compensation attorney could help you appeal. If you were rear-ended by another driver while you were legally stopped at a stop sign, for instance, the presence of drugs or alcohol in your system would have no bearing on the accident – the other driver would be at fault. In that circumstance, you could still be awarded workers compensation benefits. On the other hand, if you caused the accident by failing to stop at the stop sign while under the influence, your claim and appeal would probably be denied.
Drug Testing and Employment
It's important to remember that even if you can still claim workers compensation, you could be fired for failing a post-accident drug test. Even in states with legal medical or recreational marijuana, for example, employers can fire employees who test positive for marijuana use. There are a small handful of states that protect workers who have a prescription for medical marijuana, but most do not, and there are no protections for employees who use marijuana recreationally.
This means that you could lose your job even if you win your workers compensation claim – a tough position for most workers. However, that makes it all the more important to know your rights in regard to workers compensation claims and not pass on your right to make a claim or appeal just because you may have a positive drug test.
If you're denied workers compensation because of a positive drug test, you should consult a workers compensation lawyer at firms like Prediletto, Halpin, Scharnikow & Nelson, P.S. for advice. An experienced workers compensation attorney may be able to get you the benefits that you need.