Many states incentivize employers to make use of workplace drug testing through workers’ compensation benefits. Multiple state laws offer a discount on workers’ compensation insurance to workplaces with a drug testing policy. Aside from this discount, workers’ compensation issues are still an excellent reason to implement workplace drug testing.
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 or her “intentional and willful misconduct,” with no specific 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 Georgia
Some states have enacted laws to make it easy for employers who properly drug test to deny workers’ compensation benefits. A great example is Georgia law.
Georgia law permits workers’ compensation denial if the injury was “due to intoxication by alcohol or being under the influence of marijuana or a controlled substance….”1 For an employer, proving that intoxication or “being under the influence” was the cause of an accident or injury can be complicated.
Georgia law, however, assists employers with this. Georgia law states:
“If any amount of marijuana or a controlled substance . . . is in the employee’s blood within eight hours of the time of the alleged accident, as shown by chemical analysis of the employee’s blood, urine, breath, or other bodily substance, there shall be a rebuttable presumption that the accident and injury or death were caused by the ingestion of marijuana or the controlled substance.”
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 then permitted to assume that the injury was primarily caused by drug use (including marijuana), 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 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.
Georgia law also goes a step further and includes a beneficial presumption if an employee refuses to take a drug test following an accident. If an employee refuses to submit to a drug test, the law also provides a presumption that the accident or injury was “caused by the consumption of alcohol or the ingestion of marijuana or a controlled substance.” This allows employers to automatically deny workers’ compensation benefits should an employee refuse a post-accident drug test.
Approximately 14 states’ workers’ compensation regulations, including those of Florida and Texas, contain provisions that permit a positive drug test to serve as proof that a workplace injury was caused by drug use. Many of these states require that the drug test comply with the legal requirements of the voluntary or mandatory workplace drug testing statutes in order to benefit from the presumption, so it is important that employers have the correct policy and procedures in place.
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. Implementing a workplace drug testing policy that meets all the requirements of state laws can benefit employers in a myriad of ways.
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We recommend employers review and discuss with your legal counsel your organization’s policies and procedures to ensure continued compliance with the changing laws and regulations.