By: Yosue Ochoa, Associate, Miami

Florida workers’ compensation laws regarding employee drug testing provide the employer/carrier with a defense to compensability if it is found that the injured worker was intoxicated or under the influence of drugs at the time of the accident. Florida law seems to be in line with the new OSHA laws as Fla. Stat. §440.09(7)(a) states that if the employer has reason to believe that the work accident was caused primarily by the influence of drugs or alcohol, then the employer may require the injured worker to submit to a test for the presence of drugs or alcohol in the employee’s system.  In the event that the injured employee tests positive for the presence of drugs or alcohol, a rebuttable presumption applies and the work accident is presumed to have been primarily caused by drugs or alcohol.  The presumption can be rebutted by clear and convincing evidence proving that the work accident was not caused by the intoxication or impairment.  Fla. Stat. §440.09(7)(b).  

Florida law takes presumptions a step further. Some employers may think, “Ok that’s good, but what if the employee refuses to undergo a drug test?”  Fla. Stat. §440.09(7)(c) accounts for this and states that if the injured worker refuses to submit to a post-accident drug test, then absent clear and convincing evidence to the contrary, the work accident is presumed to have been primarily caused by drugs or alcohol.  This portion of the statute is the most troubling in regards to OSHA’s fight against deterring the reporting of work place injuries and anti-retaliation laws.  The injured worker may be deterred from reporting the injury in the first place if he or she knows that submitting to a drug test or refusing to do so would both lead to negative consequences.  Employers can combat this by ensuring the motive behind the drug testing is truly to ascertain the root cause of the accident, and not simply to avail themselves to statutory defenses.   In other words, employers may wish to reconsider blanket drug testing rules, and utilize them only in situations where intoxication may be a factor.