Workplace testing for alcohol and impermissible drug use is commonplace. Employers will commonly apply discipline for violations under human resources policy. It can also be very important in workers’ compensation, and not just because employer policies permit testing after employees suffer work-related injuries. Violations can lead to significant reductions or forfeitures in benefits.
A drug and alcohol testing program must include two basic parts in workers’ compensation. First, there must be a policy that plainly and reasonably tells employees what is prohibited. Employers can adopt a policy calling for a drug-free workplace. They can instead identify what conduct and substances they seek to prohibit. This is an important decision. For one example, an employer who has trouble retaining employees may decide it is better to use progressive discipline rather than automatically terminating employees. A plan must also inform employees that there will be testing after on-the-job injuries.
Second, employers must be able to prove a violation occurred. Employers must follow these requirements to prove an employee violated the policy that prohibits the use of alcohol or drugs. The first testing must be conducted within 24 hours of the accident and injury. The employee must be notified of test results within 14 days of when the insurance company learns of the results. The employee must have a chance to conduct a second sample. Mass spectrometry using generally accepting testing procedures is also required.
Benefits can be reduced by 50% when there is a connection between the prohibited use of alcohol or drugs with the injury. Benefits can be forfeited when the violation of the alcohol and drug policy is the proximate cause of the injury.
There are other important provisions. Testing for alcohol confirming a blood alcohol content of .08% triggers a rebuttable presumption that violating the rule was the proximate cause of the injury and therefore justifying a forfeiture of benefits. Employers may forfeit benefits when employees refuse testing if there is sufficient cause to suspect alcohol or drug use and the policy authorizes testing.
The time to make it certain that procedures are sufficient is before an employee suffers an accident. Employers concerned about this subject should take the initiative because some insurance companies may not understand what is required. Contact Neale & Newman, L.L.P. for an initial evaluation to assist creating a defensible plan.