Whether you work in construction or customer service, you’re likely familiar with the practice of workplace drug testing. Many companies require applicants to pass a drug test before they are hired. Others may conduct random drug tests throughout the course of employment. Similarly, it’s not uncommon for an employer to require a drug test after a workplace accident. This is called post injury drug testing, and the results can affect your eligibility for workers’ compensation.
Intoxication Defense in Workers’ Compensation
When you’re hurt on the job and file a workers’ compensation claim to collect medical and wage loss benefits, it affects your employer’s bottom line. To minimize the financial impact, companies often try to do whatever it takes to deny workers’ compensation claims, including post injury drug testing. Generally, an injury caused by drug or alcohol intoxication is not covered by workers’ compensation. So, it makes sense that an employer would be very motivated to prove that drugs or alcohol were involved in an accident.
For an employer to deny a workers’ compensation claim on the grounds of intoxication, he or she must prove:
a.) That the employee was intoxicated at the time of the workplace injury, and
b.) That the intoxication contributed to or caused the injury.
These facts can be difficult to prove. Even if a drug test is positive, it does not necessarily mean an employee was intoxicated at work and that the substance contributed or caused the injury. Therefore, a positive drug test does not automatically disqualify an employee for workers’ compensation. Once all of the evidence is collected, it’s up to a judge to determine whether the worker should receive benefits.
How long does an employer have to drug test post accident?
It’s in an employer’s best interest to conduct a breathalyzer or drug test as soon as possible after an accident. The longer an employer waits to conduct a drug test, the less accurate it will be. The post accident drug test time limit is 12 hours after an accident occurs, as different drugs have different windows of detection.
Tests for alcohol are more time sensitive because of the short amount of time alcohol remains in a person’s system. Breathalyzer tests are generally given within two hours of an accident but can be administered up to eight hours after.
What is the post accident drug testing procedure?
Occupational Safety and Health Administration (OSHA) post accident drug testing policies prohibit employers from drug testing after all workplace accidents, as this may discourage workers from reporting their injuries. Rather, an employer must have reasonable suspicion that a worker was intoxicated at the time of the accident and that the accident was caused by the impairment.
If your employer requires you to take a drug test, you will be notified and given instructions for how to complete it. Your employer will call the testing facility to inform them that you will be arriving for a post injury drug test. Typically, employees do not return to work following a post injury drug test.
Currently, urine is the only specimen permitted for federal drug testing programs. The test will check for the five illicit drugs (amphetamines, THC, cocaine, opiates, and phencyclidine) and alcohol. However, your employer can test for additional substances, including drugs you may have a prescription for. Because of this, it’s important to tell your treating physician about all medications you currently take, prescription or non-prescription. If you have been injured at work and failed a drug test, a workers’ compensation attorney can help you collect the benefits you need.
Injured at work and failed a drug test? A San Diego workers’ comp attorney can help
A failed drug test doesn’t necessarily mean you’re ineligible for workers’ compensation, but it may be more difficult to get the benefits you need to recover. At the Law Office of Gerald Brody & Associates, our experienced workers’ comp attorneys have decades of experience fighting on the behalf of injured workers. Best of all, there are no up-front fees or out-of-pocket costs for legal representation. Call us today at (619) 528-9800.