At times, an employee is faced with the dilemma of having been injured at work and the employer then demands a post-injury drug and alcohol screen. Employers do have the right to require an employee to submit to post-injury drug testing. Benefits can be denied even if the employee was injured in the course of employment if the employee has ingested alcohol or marijuana, or has improperly ingested a controlled substance so that the employee was intoxicated at the time of the accident and the accident was proximately caused by the employee’s intoxication. As this is an affirmative defense, the employer must prove intoxication in order to deny benefits.
To prove intoxication by way of testing, the blood or urine sample must be taken within three (3) hours of the accident and show blood alcohol levels of 0.08 or higher, or if the sample is taken within eight (8) hours of the accident and shows the presence of illicit drugs, a rebuttable presumption arises that the accident was caused either by the consumption of alcohol, or by the consumption of illicit drugs. A rebuttable presumption also arises if an employee unjustifiably refuses to submit to testing.
It is important to know that even if the test is positive for either alcohol or drugs, the results do not create the presumption of intoxication unless the samples were taken within the times stated above. Also, positive test results, particularly involving marijuana, do not necessarily mean that benefits will never be received by the injured worker. Remember, the employee must actually be intoxicated at the time of the accident and the intoxication must be the reason the injury occurred. Certainly there are occasions where a substance is found in the injured worker’s blood or urine at the time of the test, but the employee was not actually intoxicated at the time of the injury.
If you or someone you know is in a situation where their workers’ compensation benefits have been denied due to a positive drug or alcohol screen, call the Work Injury Lawyers at Hollington Brown LLP. We can review the facts with you, answer any questions you might have, and work to determine whether you are entitled to benefits for your work injury.