By: Sean Jordan, Associate, Orlando

 

Workers’ compensation benefits are not payable if an injury to the employee was caused primarily by his/her intoxication or the influence of any drugs not prescribed by a physician. FS 440.09(3).

 

Even if the employer has not implemented a drug-free workplace program, they still have the right to require an employee to submit to a test for the presence of any drugs or alcohol in his or her system, if there is reason to suspect that the injury was occasioned primarily by the intoxication of the employee or by the use of any drug. If the injured worker refuses to submit to a drug test, in the absence of clear and convincing evidence to the contrary, it will be presumed that the injury was occasioned primarily by the influence of drugs.

 

It is presumed that an injury was occasioned primarily by drugs or alcohol when an injured worker tests positive for drugs or alcohol.   If the employer has fully implemented a drug-free workplace, this presumption may be rebutted only by evidence that there is no reasonable hypothesis that the intoxication or drug influence contributed to the injury. In the absence of a drug-free workplace program, the presumption may be rebutted by clear and convincing evidence that the intoxication or influence of the drug did not contribute to the injury. The statutory presumptions do not apply if, before the accident, the employer had actual knowledge of and expressly acquiesced in the employee’s presence at the workplace while under the influence.

 

To rebut the statutory presumptions, the injured worker must (1) prove the actual quantitative amounts of the drug found in the initial and confirmation post-accident drug tests; and (2) provide additional evidence regarding the absence of drug influence other than the worker’s own denial.

 

To preserve the drug intoxication defense, an employer/carrier must strictly follow the rules for statutory testing requirements in order to become entitled to the presumption that a claimant’s injury was occasioned primarily by their intoxication should a test come back positive. Such provisions include: standards for licensing drug-testing laboratories; minimum specimen amounts; methods of analysis and standards for initial and confirmation test; minimum cutoff detection levels for each drug or metabolites of such drug; chain of custody procedures; and retention, storage and transportation procedures.  

 

As a result, there are many instances where the drug testing procedures demonstrate a lack of compliance with the required administrative procedures for testing and maintaining testing samples. The following are some common examples where an employer/carrier was not entitled to the intoxication defense because the drug testing procedures were not followed as prescribed by statute:

 

1. Drug Testing Medically Draw Samples – a drug test performed for medical purposes is only be admissible to support an intoxication defense presumption if the entire positive-confirmation drug testing process using the medically drawn sample complies with all of the aforementioned the statutorily required administrative rules.
2. Confirmation testing – Any positive test must be retested and confirmed in accordance with confirmation testing guidelines and procedures.
3. Laboratories – All initial and confirmation testing must be done at a drug testing facility certified licensed or authorized by the statutory and administrative guidelines.
4. At the time of accident – Before the presumption authorized by F.S.440.09(7)(b) can come into play, the employer must establish that the employee, at the time of the injury, was intoxicated beyond the minimum cutoff detection levels for each drug defined by the statute.
5. Medical review officers (MROs) – A MRO must review and verify the results of drug tests before releasing the results.
6. Notification of Positive Tests to Employees– If the test result is positive, the MRO must inform the injured employee of his fact within three (3) days after receiving the result.
7. Notification of a Denial to Health Care Providers – A Carrier who intends to deny a claim base don an intoxication defense must send written notice to all health care providers. This notice must announce the future date after which the carrier will no longer pay for medical treatment. Reasonable notice is not defined, but five days should sufficient since that is the time deemed reasonable notice for depositions.
8. 90 day retention period – if a test is positive, the testing facility must maintain the specimen for a minimum of ninety (90) days.

 

In sum, the intoxication defense can be a very effectivel tool to limit liability for an on-the-job injury, as it permits a total denial. Unfortunately, it is difficult, at best, to ensure that all requirements are met. If there is ever a concern of intoxication, it is imperative to act quickly and thoroughly in order to address and preserve the evidence. Even if one of the steps is not met, the evidence may still be used as a negotiation tool.

Sean Jordan | Associate