Will My Workers’ Comp Be Denied If I Fail a Drug Test?

Will My Workers’ Comp Be Denied If I Fail a Drug Test?

An Oklahoma state court recently allowed an injured worker to receive workers’ compensation benefits despite the fact that he tested positive for marijuana use after a workplace accident caused by another worker.

The ruling in the case Rose v. Berry Plastics Corp, as explained in the National Law Review and in Business Insurance, underscores the no-fault nature of workers’ compensation injury insurance.

Typically, workers’ comp benefits are available to covered workers regardless of how they were injured on the job, unless they were intoxicated or the injury is wholly unrelated to the person’s employment.

The Oklahoma court found in the recent case that “the presence of an intoxicating substance in the (injured worker’s bloodstream) does not automatically mean that person is intoxicated.”

Dillion Rose was trying to retrieve a piece of plastic stuck in a machine roller, but a co-worker accidentally restarted the machine as he reached into it, and his left hand and wrist were crushed. “He was subjected to a post-accident drug test and tested positive for marijuana and morphine,” the National Law Review article said. Rose’s workers’ compensation claim initially was denied due to the positive drug test results.

At a hearing before an administrative law judge (ALJ), Rose acknowledged smoking marijuana the night before the accident. He also acknowledged that putting his hand inside the machine was unsafe. But he maintained in testimony that he was ‘thinking clearly’ and was not impaired.

There was no evidence to refute Rose’s statements about the circumstances of the accident.

Proving That Drug Intoxication Didn’t Cause Your Injuries

Rose prevailed when the ALJ ruled that intoxication had no causal relationship to the injury and that his employer should provide medical treatment and temporary disability benefits.

But his employer, Berry Plastics in McAlester, Oklahoma, appealed to the OK Workers’ Compensation Commission (WCC), which ruled that “we are not convinced” that Rose was clear-headed at the time of the accident, and that the chemicals in his system may have affected his “judgment, physical and cognitive facilities at the time of the accident.”

The court, the Oklahoma Civil Court of Appeals, ruled that the WCC should only have determined whether there was “clear and convincing evidence” to support the ALJ’s finding that intoxication had no causal relationship to the injury. The commission’s statement that the chemicals in Rose’s system may have affected him at the time of the accident was speculation, the court said.

The court’s ruling reiterates that the burden of proof is on the employer, not the injured worker, to deny benefits. The Court of Appeals judge rejected the commission’s inference that the presence of marijuana in Mr. Rose’s failed drug test meant he was intoxicated at the time of the accident, Business Insider explained. The state court reinstated the ALJ’s order providing benefits to Rose.

Does Workers’ Comp In Oklahoma Require A Post-Injury Drug Test?

Employers in Oklahoma may require employees to undergo drug tests under a variety of circumstances as long as there is a written policy in place and employees are notified at least 30 days prior to any testing.

Often such drug-free workplace tests are a condition of hiring, but drug tests may also legally be required by Oklahoma employers:

  • After an accident has occurred
  • Upon reasonable suspicion of workplace intoxication
  • As random testing (with restrictions on public employers for specific positions; unrestricted for private employers)
  • As periodic fitness-for-duty medical examinations
  • Following drug rehabilitation.

The employer’s drug or alcohol testing policy must comply with Oklahoma’s Standards for Workplace Drug and Alcohol Testing Act and must be communicated to employees and prospective employees through posting at prominent employee access areas, personally handing them a copy of the policy, through the mail or via e-mail with document-receipt capability. The employer must pay all costs of testing and make an employee assistance program available to employees.

Employers may discipline employees who test positive for illegal drug use or drug or alcohol intoxication on the job, or for refusal to take a test.

While blood-alcohol concentration (BAC) testing can measure current impairment, no such test for marijuana is readily available. However, Business Insurance reports that new drug tests set to hit the market in 2020 are expected to measure marijuana impairment in a manner similar to how an alcohol breathalyzer works.

While Oklahoma’s medical marijuana program makes the drug easily available to anyone who can obtain a physician’s recommendation for it, employers have a legal and legitimate right to prohibit on-the-job intoxication.

What Kind Of Drugs Are Tested For Workers Comp? Should I Be Worried?

As the recent court case shows, the legitimacy of a workers’ compensation claim may be questioned due to the worker’s impairment at the time of the accident. But a failed drug test by itself does not automatically disqualify an injured worker from receiving workers’ comp benefits.

The case, Rose v. Berry Plastics Corp., would certainly be cited as guiding precedent that a positive post-accident drug test for marijuana does not prove intoxication at the time of the accident. Marijuana and other drugs remain in the user’s system long after intoxication has worn off.

The exact amount of time a drug stays in the user’s system will vary according to factors like the dosage and the person’s age, weight, sex and physical health. For example, some average times that drugs will continue to show up in a urine drug test include:

  • Marijuana/THC: 1-7 days.
  • Heroin: 1-3 days.
  • Cocaine: 2-3 days.
  • Methadone: 2-3 days.
  • MDMA: 2-4 days
  • Ritalin: 1-3 days.
  • Tramadol: 1-4 days
  • Xanax: 4-7 days
  • Valium: 10 days.

Contact an Oklahoma Workers’ Comp Attorney About a Failed Drug Test

If you fail a post-accident drug test required by an employer and you were injured badly enough to justify a workers’ compensation claim, you should contact an experienced OK workers’ compensation attorney as soon as possible. Your employer may try to dispute your claim, but you may still be eligible for workers’ compensation benefits.

The Oklahoma workers’ compensation lawyers of Ryan Bisher Ryan & Simons have decades of experience and the resources necessary to fight for you if you are having difficulty obtaining workers’ compensation benefits. Contact us today to schedule a free consultation about your work-related injury.