By: Ryan Lawson, Associate, Atlanta

Georgia law provides employers and insurers a defense to the payment of workers’ compensation benefits when an injured employee tests positive for a non-prescribed, controlled substance within eight (8) hours from the occurrence of an occupational injury. This defense is codified at O.C.G.A. § 34-9-17(b)(2), which holds:

If any amount of marijuana or a controlled substance as defined in paragraph (4) of Code Section 16-13-21, Code Sections 16-13-25 through 16-13-29, Schedule I-V, or 21 C.F.R. Part 1308 is in the employee’s blood within eight hours of the time of the alleged accident, as shown by chemical analysis of the employee’s blood, urine, breath, or other bodily substance, there shall be a rebuttable presumption that the accident and injury or death were caused by the ingestion of marijuana or the controlled substance. Id.

This defense functions as a complete bar to the injured employee’s recovery of both medical and indemnity benefits as long as said employee cannot overcome the “rebuttable presumption” that the proximate cause of the accident or injury was his or her intoxication. To overcome this presumption, and thus defeat the intoxication defense, an injured employee must show that either: 1. They were not statutorily intoxicated at the time of the accident; or 2. The accident or injury would have occurred regardless of the intoxication. The former can be shown by showing that the claimant was legally prescribed the medication for which they tested positive, that the drug screen did not occur within the statutory eight (8) hour period, that the drug screen result was incorrect (false positive), or that the drug screen was not properly preformed and is thus unreliable. The latter is a factual determination that involves the injured employee proving to a judge that the intoxication did not cause the accident. An example of an accident which may have occurred regardless of intoxication is as follows: an employee who is working on a construction project gets hit on the head from a falling steel beam that he or she could not have seen, or avoided, regardless of their intoxication status.

Going back to the initial analysis of the impact of positive drug screens in Georgia, we find some middle ground which may allow for employers to effectively defend legitimate instances of intoxication-based accidents while still falling in line with the new O.S.H.A. provisions. As positive drug screens are only effective when the accident appears to have been proximately caused by the intoxication, and relatively ineffective in situations where the accident would have been caused regardless of the intoxication, employers should institute a revised post-accident protocol which incorporates a reasonable screening process for accidents which are likely to have been caused by intoxication, thus creating a reasonable basis for the drug screen.  Unfortunately, until there are reported cases on the issue, or additional guidance is issued by O.S.H.A., it is difficult to give specific examples of when employers are absolutely allowed to drug screen injured employees.  However,   in situations where it is clear that intoxication did not play a role in the accident, mandatory post-accident drug screening should not be automatically initiated.  For example, going back to the hypothetical given earlier in this article of a steel beam falling onto the head of a worker, this would be a situation in which you should not conduct post-accident drug screening to ensure compliance with the new O.S.H.A. regulations.