2/10/2016 Drug Testing, Workers’ Compensation And Unemployment: Are You Ready To Defend a Claim ? That’s Where the Money Is! William J. Judge, JD, LL.M Chief Research Officer Encompass Compliance Corp. 708-334-8010 bjudge@encompinc.com Drug Testing, Unemployment and Workers’ Compensation: $ Where the Money Is $ But, Only if you are in COMPLIANCE! 1
2/10/2016 Compliance Overview: 40 years of workplace drug testing. Nearly 45 million drug tests done each year. More than 600 state laws & regulations impact Workplace drug testing. More than 10,000 court and agency decisions. When dealing with drug testing, workers’ compensation and unemployment we are dealing with 3 different legal concepts with 3 different sets of rules. We MUST Change the Way We Think! 2
2/10/2016 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 3
2/10/2016 Yes, You Can Defeat These Claims! Workers’ Compensation Intoxication 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. 18 states AL KS OH AR LA OK CO MO TN FL NC TX Rebuttable Presumption GA ND VA Of IL NV UT Intoxication Workers Compensation Claim Defense 4
2/10/2016 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, or positive 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 suspect impairment. Refusal = forfeiture of benefits. If death benefits requested, death certificate rules. 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 . . . 5
2/10/2016 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; 6
2/10/2016 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; 7
2/10/2016 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. 8
2/10/2016 Drug Testing Works September 2011 Society for Human Resource Management(SHRM) survey found the number of employers reporting high WC incidence rates decreased by approximately 50% after introducing drug 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 9
2/10/2016 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. 10
2/10/2016 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. 11
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