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Can you get workers’ compensation benefits if you fail a drug test?
Many employers will give random drug screens to employees – and get a discount on their workers’ comp insurance policies for complying with the requirements for a “drug-free workplace.”
Employers will also drug test employees whenever there is an accident that could lead to workers’ compensation coverage – in this article, we will look at workers’ comp and drug tests, including:
It might – but a positive drug test alone is not enough to deny coverage. Your employer must prove not only that you failed a drug test, but 1) that you were intoxicated and 2) that your intoxication caused the accident that led to your injuries.
Although workers’ compensation in SC is “no-fault,” there are exceptions including when an accident is caused by the employee’s intoxication and when an accident is intentionally caused by an employee.
Many employers will automatically drug test employees when there is an accident. Why? Because SC law says that if the accident was caused by the employee’s intoxication, the employer doesn’t have to pay.
SC Code § 42-9-60 says that “[n]o compensation shall be payable if the injury or death was occasioned by the intoxication of the employee or by the wilful intention of the employee to injure or kill himself or another.”
The burden of proof is on the employer to show that the employee’s intoxication caused the accident, but employers will often automatically deny workers’ compensation coverage if the employee fails a drug test – remember, insurance companies will use every excuse they can to deny or limit claims…
A construction worker falls from scaffolding, injuring his back and requiring hospitalization. His drug screen comes back positive for marijuana, so his employer denies his request for workers’ compensation.
But, if the accident occurred on Wednesday, but he tested positive for marijuana that he smoked on Monday evening, was he intoxicated, and did his intoxication cause the accident? It’s not likely – to deny the claim, the insurance company would need to prove:
The insurance company may initially deny the claim based on the drug screen results because they are hoping that the employee will move on and not insist on collecting benefits. In this case, the employee should consult with a workers’ compensation attorney, file a formal workers’ comp claim, and request a hearing with the Workers’ Compensation Commission.
On the other hand, if an employee falls from the scaffolding, has a blood alcohol content (BAC) of .16, and witnesses say he smelled of alcohol and was stumbling before he climbed onto the scaffolding, the insurance company may deny the claim and can probably prove that the accident was caused by the intoxication.
Employers in SC get a discount on their workers’ compensation insurance premiums if they qualify as a drug-free workplace. To qualify, the employer must conduct random drug screens for all employees and a follow-up test within 30 minutes of the initial test.
Companies must be cautious when administering random drug screens, however, as there are pitfalls that could result in lawsuits against the company. For example:
Although the Occupational Safety and Health Administration (OSHA) has made it clear that employers cannot retaliate against employees for reporting work-related injuries or illnesses, and post-accident testing can be a form of retaliation intended to discourage reporting of on-the-job injuries, most post-accident drug tests are legal.
OSHA has clarified that most examples of workplace drug testing are acceptable under federal regulations, including:
In theory, employers should only test employees after an accident when there is reason to believe the employee is intoxicated, and they should test the employees whose conduct contributed to the accident and not just the injured employee who is seeking workers’ compensation.
In practice, however, employers are likely to drug test employees who report an injury because this gives the insurance company a potential reason to deny the employee’s claim…
If your workers’ compensation claim was denied due to a positive drug test when the accident was not caused by your intoxication, you should seek advice from an experienced SC workers’ comp lawyer immediately.
Your Myrtle Beach worker’s compensation lawyer on the Axelrod team will help you to determine whether you have a workers’ compensation claim, file your claim, and represent you before the workers’ compensation commission for any hearings and appeals.
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