Workers’ compensation ensures that you will receive benefits in case of a work-related accident. But if you fail a workers’ comp drug test, getting your benefits might not be that easy.
In Florida (as in most states), workers’ compensation is a no-fault system. Meaning, you can claim workers’ compensation benefits if you get hurt at work, no matter who is at fault. But this no-fault assumption doesn’t apply when drugs and alcohol are involved.
Remember that your employer pays for your workers’ compensation benefits. In as much as you are protected by law, they, too, have rights to safeguard their interest. If there is doubt that drug or alcohol intoxication played a role in your injury, they have the right to try and prove that. And it’s your duty to prove otherwise.
If your drug test results come out positive, you may not be able to receive workers’ comp benefits.
To help you understand this better, here’s what you need to know about drug testing for workers’ compensation.
Alcohol and Drug Testing for Workers Comp Claims: How It Works
If your employer is implementing a drug-free workplace, drug testing is usually routine. In workers’ compensation claims, some employers may also require drug testing before benefits are granted.
Post-accident drug testing for workers comp is typically done through a urine test. But in some instances, blood or hair samples and even nail clippings may also be used. If alcohol intoxication is suspected, you may also find yourself blowing through a breath analyzer.
A typical drug test will be screening for commonly-abused drugs like:
- phencyclidine (PCP or angel dust)
- opiates (heroin, opium, codeine, morphine)
For alcohol tests, the definition of “intoxicated” also varies per state. In Florida, an injured employee is considered drunk at the time of the accident if:
- their blood alcohol content (BAC) is at least 0.08 per 100 milliliters of blood, or
- their breath alcohol level is at least 0.08 per 210 liters of breath
In some states, a BAC of 0.05 to 0.08 must be considered with other evidence to determine if you’re intoxicated.
For the results of these tests to be valid, they have to be done within a specific time frame. Drug tests have to be administered within 8 hours after the accident. While BAC tests have to be done within 2 hours. Otherwise, the results will be unreliable and cannot be used in court.
Is It Legal For Your Employer to Require a Workers Comp Drug Test?
The policies vary per state, but in most cases, it’s perfectly legal for an employer to require a drug test for workers comp purposes as long as they have a valid reason to do so.
According to the 2022 Florida Statutes, your employer can legally require you to undergo a drug or alcohol test if:
- they have reason to suspect that your injury is mainly caused by alcohol intoxication or drug use, which has impaired your normal faculties;
- your employer has not implemented a drug-free workplace policy
This latest statute allows the employer to test for the presence of any or all drugs or alcohol in your system. This means that drug testing for workers comp is no longer limited to the commonly-abused drugs. Your employer can also require testing for any other types of drugs that can significantly affect your faculties at the time of the accident.
To ensure that your rights aren’t violated by the required drug tests, you should research your state’s individual policy. Or you can ask your workers compensation lawyer if the drug testing requirement is allowed by your state’s laws.
Can You Refuse a Drug Test for Workers Comp?
Though your employer has the right to request drug tests, you also have the right to refuse. There is no law that states an injured worker must take a drug or alcohol test to receive workers’ compensation. OSHA also ruled that requiring drug testing for workers comp claims violates their standards if the employer uses it as retaliation to the injured worker for filing a workers comp claim. However, if it’s part of the employer’s workplace safety and health program, OSHA says it’s the employer’s prerogative. Even then, they still can’t compel you to undergo drug testing.
However, refusing a post-accident drug test will only prove that intoxication indeed played a part in the accident. The law presumes that if you have nothing to hide, a simple drug test won’t do you harm.
In fact, Florida’s Workers Compensation Act specifically states that:
If the injured worker refuses to submit to a drug test, it shall be presumed in the absence of clear and convincing evidence to the contrary that the injury was occasioned primarily by the influence of drugs.
In short, if you refuse to undergo a drug test, you must have a valid reason. Otherwise, the courts will take it as a sign of guilt, and you may lose your benefits. Also, if your employer has a written rule about requiring drug tests for all employees even before the accident, refusing such can constitute a violation of workplace policies. As such, they can legally fire you.
What Happens If You Fail the Drug Test?
As you’ve probably guessed, failing your workers comp drug test can have serious consequences. The specifics can vary depending on your location and jurisdiction, but in general, it will include:
- Losing your workers comp benefits. As I said, if drug use or alcohol intoxication is found to be a contributing factor to the injury or accident, your benefits can get denied.
- Losing your job. Employers have the right to maintain a drug-free workplace, and failing a drug test can be grounds for disciplinary action, including termination.
- Legal consequences. In certain situations, failing a drug test may lead to legal issues. This is especially true if the drug use violates local, state, or federal laws.
- Ineligibility for rehire. Some employers have policies that ban hiring employees who failed their drug tests.
- Lesser employment opportunities. As you may well know, a failed drug test can affect your work opportunities. Some employers conduct pre-employment drug screening, and a history of failing drug tests may make it difficult for you to secure a new job.
- Impact on future workers compensation claims. Aside from losing your current workers compensation claim, a failed drug test can also make it harder for you to claim workers comp in the future. Your future employer can dig up your results and use it to create doubts that drug use played a part in your injury.
How to Claim Benefits Even If You Fail Your Drug or Alcohol Test
In Florida, failing the drug test doesn’t necessarily mean you won’t get workers’ compensation benefits. But it can make the process a lot harder. To be able to claim workers comp benefits, you must prove that:
- Drug or alcohol abuse did not cause the accident. For example, if another employee accidentally dropped a hammer and hit you on the head. Or the scaffold broke and caused you to fall several floors down.
- The samples used in the testing weren’t handled properly. The samples could have been tampered with if the testing procedure didn’t follow the proper protocol.
- You are using prescription medicines that contain regulated substances. Some prescription drugs, like pain relievers, contain opiates that may appear in the test results. This can invalidate the drug testing process.
- There was no written policy banning drug use in the workplace. Or if there is, it wasn’t communicated to the employees. In some states, the employer can only deny benefits on the basis of intoxication if there is a clear policy banning drugs and alcohol in the workplace at the time of the accident.
- You are using medicinal marijuana. States like Florida have allowed the use of marijuana for medical purposes. If you have the proper prescriptions, you can use this as a defense.
- Your employer provided or consented to the use of drugs and alcohol. If your boss gave you the alcohol or was part of the drinking session, they can’t use intoxication as an excuse to deny your benefits.
Should You Hire a Workers Compensation Lawyer?
Hiring a workers compensation lawyer isn’t really required when filing a workers comp claim. But it can help you ensure a favorable result.
You see, proving that drug and alcohol intoxication had nothing to do with your injury can be hard. Not to mention that it can be terribly confusing for someone not familiar with the law. This is why you need an experienced workers’ compensation lawyer like Victor Malca. Your employer and insurance provider will try really hard to prove that your injury is caused by intoxication or drug abuse. An experienced workers’ compensation lawyer can help you prove otherwise and get the benefits you rightfully deserve.
VICTOR MALCA – Florida Workers Compensation & Social Security Disability Attorney
Victor Malca P.A. has over 27 years of litigation experience in Workers Compensation and Social Security Disability lawsuits. His experience and continued success when fighting for his clients puts him among the most trusted workers’ compensation attorney’s in Florida. He specializes in representing injured workers on compensation benefit cases and disabled individuals claiming lost social security disability benefits.
Book a free consultation today. Our unwavering advocacy for employee rights and privileges are recognized by our past clients across South Florida.
About The Author
Judy Ponio is a writer and editor for the Victor Malca Law P.A. website and blog. She enjoys helping people in need with questions about social security disability and workers compensation law. She has a passion for helping those in need and the elderly with accurate legal information that can make a positive difference in their lives.