Last updated on December 2nd, 2020 at 12:26 pm
“Drug testing in my workplace costs too much. I don’t see the return on investment (ROI).” ~Attendee at a recent seminar
Occasionally the argument of cost versus value is heard from human resource managers and company executives when asked about their workplace drug and alcohol testing programs. They argue that it costs too much to set up a screening program and to manage it daily.
When asked what their expectations were when the programs were established, they seldom can tell you. They may repeat some slogan they’ve read about in the newspaper or heard at an industry seminar, but they cannot explain to you what their goals were in their company’s program and what having the testing program has meant to them.
These people are missing the boat, and that boat is full of cash!
Setting aside all the long list of benefits from drug testing such as decreased absenteeism, reduced tardiness, reduced theft, increased morale, decreased injuries on-the-job  there is also the unmeasurable but no doubt the particular benefit of deterrence; preventing illegal drug users and problem drinkers from even stepping foot in your workplace.
These are all benefits of any workplace drug testing program that can be difficult to measure in dollars and cents. But there is one area where the benefits of any drug testing program can be measured in real cold hard cash – workers’ compensation.
This benefit can only help your bottom line if you are ready to comply with the state-specific rules and if you’re prepared to take advantage of the opportunity aggressively.
Background – The Intoxication Defense
Almost every state provides injured workers protection from possible loss of income and reimbursement of medical costs resulting from a work-related injury. In 1911, Wisconsin became the first state to pass the first comprehensive workers’ compensation law . The state laws provided a “no-fault” concept to injuries received in the course of employment. If an employee were injured in the course of work, compensation benefits would be paid, and certain medical expenses would be covered. The law was positioned as a remedy to reduce the overwhelming and growing number of personal injury lawsuits arising out of the workplace.
But soon exceptions to this no-fault concept began to arise. Various defenses to a claim stemming from a work-related injury were recognized by the courts. An intoxication exception was raised almost immediately.
Known as the intoxication defense, it found its origins in England. In a 1912 case, Firth v. Owners of S.S. Louisianian a sailor and a shipmate went ashore without permission and returned “in an advanced state of intoxication,” barely making it onto the ship. Mr. Firth fell to his hands and knees. After a time, he staggered to his feet, lurched forward and fell overboard. He drowned. His dependents filed a petition for compensation. Denying their petition, the Court concluded that “[t]he injury was not due to an accident arising out of his employment, but due solely to hopeless drunkenness.”
Until the 1990s the intoxication defenses primarily involved alcohol. As drug testing became more prominent, drug-involved injuries were also the subject of the intoxication defense.
But whether the defense involved alcohol or drugs the employer, or their insurer had to show that not only was the employee intoxicated but that intoxication “removed” him or her from their job. It was necessary for the employer to show that the employee’s intoxication if proved, caused the accident leading to the injury.
As you might imagine this was difficult to do.
Soon after, legislatures around the country began to recognize that drug testing provided a new tool to address not only the intoxication issue but the cause issue as well. Today nineteen states have enacted legislation that provides that intoxication will be “presumed” if an employer can show the required testing rules were followed. The employer must still show that the employee’s intoxication “caused” the injury but at least one component of the intoxication defense is established.
Most of the nineteen states that have passed “rebuttable presumption” laws provide that an employer that followed the rules laid out in the statute or regulation have the benefit of presumptively establishing not just intoxication but cause as well.
The employee in these states has the right to provide a rebuttal, presenting evidence to show that something other than his or her intoxication caused the injury or that the test was not performed correctly or that the test alone does not prove he or she was intoxicated.
Employers in these nineteen states should take advantage of the rebuttable presumption laws in the states in which they operate. If you don’t take advantage of these laws, you are leaving cash on the table. The cost savings from these efforts will likely cover the costs of implementing and maintaining your employee drug screening program!
If you want to know where the ROI is for drug and alcohol testing, IT’S RIGHT HERE!
One anecdotal example: (a true story) An employer that operates in all 50 states experienced a dramatically high workers’ compensation liability in one year. They implemented a ‘pilot’ drug and alcohol testing program in just six of the nineteen states that provide the rebuttable presumption of intoxication defense to a workers’ compensation claim.
In the first twelve months, their workers’ compensation claims dropped 20%, and they saved more than $6.5 million!
A favorable ROI exists with your employee drug screening program, especially in states where these benefits are available. Employers can take advantage of the savings by ensuring their policy and procedures comply with the state-specific rules.
Check your State laws and the availability of the Intoxication Defense. The NDS team can help review your program details to make sure your company can leverage these benefits in the states that they apply – contact National Drug Screening today at 866-843-4545.
 Drugs and Alcohol in the Workplace, NCADD
 Guyton, A Brief History of Workers’ Compensation, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1888620/pdf/IowaOrthopJ-19-106.pdf, noting that in 1948 Mississippi became the final state to enact workers’ compensation protections.
 Grove, Intoxication and Removal from Course of Employment: Ohio’s No-Fault Exception in Phelps v. Positive Action Tool Co., 1987, https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=2561&context=caselrev
 Court of Appeals, England, 1912. L. R. 1912, 2 K. B. 155.