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Drug Testing,Workers’ Compensation

AndUnemployment:

Are You Ready To Defend a Claim?

That’s Where the Money Is!

William J. Judge, JD, LL.MChief Research Officer

Encompass Compliance Corp.

708-334-8010bjudge@encompinc.com

Drug Testing, Unemployment and Workers’ Compensation:

$ Where the Money Is $

But,

Only if you are in COMPLIANCE!

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Compliance Overview:

40 years of workplace drug testing.Nearly 45 million drug tests done each year.More than 600 state laws & regulations impactWorkplace drug testing.More than 10,000 court and agency decisions.

When dealing with drug testing,workers’ compensation andunemployment we are dealing with 3different legal concepts with 3different sets of rules.

We MUSTChange the Way We

Think!

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Compliance vs. Opportunity

Compliance: Drug testing was at first all about compliance. Compliance with federal rules then becoming aware of the need to comply with state laws. The goal was to keep those who would not adhere to company rules out of our workplaces.

Compliance vs. Opportunity

Opportunity: Now we are beginning to recognize that drug testing programs also present opportunities. These opportunities are not just in the form of refusing to hire or firing those who would rather use drugs than get or keep their jobs, but by using state workers’ compensation and unemployment rules to impact the bottom line.

Start by clearly understanding what the law is.

Statutes

Regulations

Court/Agency Decisions

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Yes, You Can Defeat These Claims!

Workers’ CompensationIntoxication Defense to a Claim

Nearly every state has an intoxication

defense to a worker’s compensation claim.

Traditionally 2 things must be proved.1. The employee was intoxicated.2. The intoxication caused the injuries.

Rebuttable PresumptionOf

Intoxication

Workers Compensation Claim Defense

18 states

AL KS OHAR LA OKCO MO TNFL NC TXGA ND VAIL NV UT

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Every state is different. For example . . .

North Dakota (T. 65, Sec.65-01-11)

Single paragraph, creates rebuttable presumption that injury due to impairment if:

test for alcohol at or above DOT level, orpositive test for illegal drugs per DOT level.Test conducted by MD, qualified technician, chemist, or registered nurse.

Every state is different. For example . . .

North Dakota (T. 65, Sec.65-01-11)

Test may be requested by employer with mandatory post-accident policy or MD or employer with ‘reasonable grounds” to suspectimpairment.Refusal = forfeiture of benefits.If death benefits requested, death certificaterules.

Every state is different. Kansas: Sec. (44-501(2))

Very specific rules;Employer NOT liable where injury was

contributed to by the employee’s use or consumption of alcohol or any drug (with limited exceptions);

It shall be conclusively presumed that the employee was impaired due to alcohol or drugs if at the time of the injury the employee has alcohol level of 0.04 or more or . . .

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Every state is different. Kansas: Sec. (44-501(2))

Very specific rules;Employer NOT liable where injury was

contributed to by the employee’s use or consumption of alcohol or any drug (with limited exceptions);

It shall be conclusively presumed that the employee was impaired due to alcohol or drugs if at the time of the injury the employee has alcohol level of 0.04 or more or . . .

Every state is different.

Kansas: Sec. (44-501(2))

a GC/MS confirmatory test showing concentrations at or above specified cutoff levels.

NOTE: The cutoff levels for cocaine (150ng/mL) and amphetamine (500ng/mL) differ from SAMHSA/DOT.

Every state is different. Kansas: Sec. (44-501(2))

The results of a drug test can be used if:(A) As a result of an employer mandated drug testing policy, in place in writing prior to the date of accident or injury, requiring any worker to submit to testing for drugs or alcohol;(B) during an autopsy or in the normal course of medical treatment for reasons related to the health and welfare of the injured worker and not at the direction of the employer;

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Every state is different. Kansas: Sec. (44-501(2))

(C) the worker, prior to the date and time of the accident or injury, gave written consent to the employer that the worker would voluntarily submit to a chemical test for drugs or alcohol following any accident or injury;(D) the worker voluntarily agrees to submit to a chemical test for drugs or alcohol following any accident or injury; or

Every state is different. Kansas: Sec. (44-501(2))

(E) as a result of federal or state law or a federal or state rule or regulation having the force and effect of law requiring a post-injury testing program and such required program was properly implemented at the time of testing.

Every state is different.

Kansas: Sec. (44-501(2))

The results of a drug test cannot be used unless:(A) The test sample was collected within a reasonable time following the accident or injury;(B) the collecting and labeling of the test sample was performed by or under the supervision of a licensed health care professional;

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Every state is different.

Kansas: Sec. (44-501(2))

(C) the test was performed by a laboratory approved by the United States department of health and human services or licensed by the department of health and environment, except that a blood sample may be tested for alcohol content by a laboratory commonly used for that purpose by state law enforcement agencies;

Every state is different.

Kansas: Sec. (44-501(2))

(D) the test was confirmed by gas chromatography-mass spectroscopy or other comparably reliable analytical method, except that no such confirmation is required for a blood alcohol sample;(E) the foundation evidence must establish, beyond a reasonable doubt, that the test results were from the sample taken from the employee; and(F) a split sample sufficient for testing shall be retained and made available to the employee within 48 hours of a positive test.

Every state is different. For example . . .

Kansas: Sec. (44-501(2))

Refusal: An employee’s refusal to submit to a test may not be used unless there was probable cause to believe the employee used, possessed or was impaired while at work.

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Drug Testing Works

September 2011 Society for Human ResourceManagement(SHRM) survey found the number ofemployers reporting high WC incidence ratesdecreased by approximately 50% after introducingdrug testing.

Drug Testing Works

Drug testing has been found to:

Reduce claims as much as 12%.

Reduce first aid injury reports 18%.

Reduce accidents 51%.

Reduce Experience Modification Rate

(EMR) as much as 11.41%.

Unemployment and Drug Testing

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Unemployment and Drug Testing

All states have some form of unemployment or “employment security.” Most list specific employee actions that may result in a loss of benefits. “Misconduct” related to work is typically among those actions.

How misconduct is defined differs from state to state.

Like workers compensation defenses, state unemployment defenses range from simple to very complex. Not all mention or provide for drug or alcohol use.

Illinois:

(820 ILCS 405/602) (from Ch. 48, par. 432)Sec. 602. Discharge for misconduct - Felony.

A. An individual shall be ineligible for benefits for the week in which he has been discharged for misconduct connected with his work . . . For purposes of this subsection, the term "misconduct" means the deliberate and willful violation of a reasonable rule or policy of the employing unit, governing the individual's behavior in performance of his work, provided such violation has harmed the employing unit or other employees or has been repeated by the individual despite a warning or other explicit instruction from the employing unit.

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Illinois:

(820 ILCS 405/602) (from Ch. 48, par. 432)Sec. 602. Discharge for misconduct - Felony.

The previous definition notwithstanding, "misconduct" shall include any of the following work-related circumstances:

* * *

6. Consuming alcohol or illegal or non-prescribed prescription drugs, or using an impairing substance in an off-label manner, on the employer's premises during working hours in violation of the employer's policies.

Illinois:

(820 ILCS 405/602) (from Ch. 48, par. 432)Sec. 602. Discharge for misconduct - Felony.

7. Reporting to work under the influence of alcohol, illegal or non-prescribed prescription drugs, or an impairing substance used in an off-label manner in violation of the employer's policies, unless the individual is compelled to report to work by the employer outside of scheduled and on-call working hours and informs the employer that he or she is under the influence of alcohol, illegal or non-prescribed prescription drugs, or an impairing substance used in an off-label manner in violation of the employer's policies.

Illinois:

(820 ILCS 405/602) (from Ch. 48, par. 432)Sec. 602. Discharge for misconduct - Felony.

Nothing in paragraph 6 or 7 prohibits the lawful use of over-the-counter drug products . . . provided that the medication does not affect the safe performance of the employee's work duties.

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AlabamaCode Sec. 25-4-78

Disqualifications for benefits.An individual shall be disqualified for total or partial unemployment:

* * *

3) DISCHARGE FOR MISCONDUCT.a. If he was discharged or removed from his work for . . . the use of illegal drugs after previous warning or for the refusal to submit to or cooperate with a blood or urine test after previous warning . . .

AlabamaCode Sec. 25-4-78

(i) A confirmed positive drug test that is conducted and evaluated according to standards set forth for the conduct and evaluation of such tests by the U.S. Department of Transportation in 49 C.F.R. Part 40 or standards shown by the employer to be otherwise reliable shall be a conclusive presumption of impairment by illegal drugs. No unemployment compensation benefits shall be allowed to an employee having a confirmed positive drug test if the employee had been warned that such a positive test could result in dismissal pursuant to a reasonable drug policy.

AlabamaCode Sec. 25-4-78

A drug policy shall be deemed reasonable if the employer shows that all employees of the employer regardless of position or classification, are subject to testing under the policy, and in those instances in which the employer offers as the basis for disqualification from unemployment compensation benefits the results obtained pursuant to additional testing imposed on some but not all classifications, if the employer can also offer some rational basis for conducting such additional testing. Further, no unemployment compensation benefits shall be allowed if the employee refuses to submit to or cooperate with a blood or urine test as set forth above, or if the employee knowingly alters or adulterates the blood or urine specimen.

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AlabamaCode Sec. 25-4-78

(ii) For purposes of paragraph a. and item (i) of paragraph a. of this subdivision, "warning" shall mean that the employee has been advised in writing of the provisions of the employer's drug policy and that either testing positive pursuant to the standards referenced above or the refusal to submit to or cooperate with a blood or urine test as set out in the above referenced standards could result in termination of employment. This written notification as herein described shall constitute a "warning" as used in paragraph a. and item (i) of paragraph a. of this subdivision.

AlabamaCode Sec. 25-4-78

(ii) For purposes of paragraph a. and item (i) of paragraph a. of this subdivision, "warning" shall mean that the employee has been advised in writing of the provisions of the employer's drug policy and that either testing positive pursuant to the standards referenced above or the refusal to submit to or cooperate with a blood or urine test as set out in the above referenced standards could result in termination of employment. This written notification as herein described shall constitute a "warning" as used in paragraph a. and item (i) of paragraph a. of this subdivision.

Per Se Intoxication Laws

Beginning in 1990 states began passing “per se” intoxication laws. In the following 19 states any trace amount of an illicit drug is considered presumptive intoxication:

AZ KY OH WIDE MI PAGA MN RIIL MS UTIN NV VAIA NC WA

Six states have passed per se “threshold” laws. These laws vary somewhat but the states and their presumptive intoxicated levels are:

CO (5ng/mL) NV (2ng/mL) PA (1ng/mL)MT (5ng/mL) OH (2ng/mL) WA (5ng/mL)

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www.EncompInc.com

Thank You.

William J. Judge, JD, LL.MChief Research Officer

Encompass Compliance Corp.

708-334-8010bjudge@encompinc.com