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Post Accident Drug Test – Rebuttable Presumption

Post Accident Drug Test - Rebuttable Presumption

Last updated on October 2nd, 2020 at 10:01 am

>>> Rebuttable Presumption of Intoxication – A Quick Guide to Avoiding Pitfalls and Saving on Your Bottom line

… By Andrew Current of the Current Consulting Group, LLC

>>> Introduction >>>

Workers’ compensation costs are at an all-time high.  An average slip and fall claim in the state of California (claim costs vary from state to state and depend on type of injury) costs $42,171 in medical expenses and $26,834 in indemnity costs.[i] Of course, most medical expenses will be covered by workers’ compensation insurance. But, typically, WC insurance only covers two-thirds of indemnity costs.  For an average slip and fall, that leaves the employer liable for roughly $8,945.  That money comes straight out of your bottom line.

This is why so many employers have turned to drug and alcohol testing.  Workplace substance abuse testing provides a measurable return on investment and a proven improvement to safety.  This is especially true when it comes to workers’ compensation claims.  When an employee’s substance abuse is the cause of an accident, the employer should not be held liable.  This is the reasoning behind a growing number of state laws that create a rebuttable presumption of intoxication in workers’ compensation cases.

What is rebuttable presumption of intoxication?

In legal terms, a rebuttable presumption is an assumption that something is true unless someone comes forth to contest it and prove otherwise.  In workers’ compensation laws that provide for a rebuttable presumption of intoxication, this is an assumption that an employee’s substance abuse was the cause of the accident unless someone comes forth to contest and prove otherwise.  This creates an incentive for employers to conduct drug testing after a workplace accident and strive to maintain a drug-free workplace.  However, it is important to note that a rebuttable presumption only shifts the responsibility from one party to another.  While many laws now provide for a rebuttable presumption of intoxication, if an employer fails to prepare other evidence, then they are putting themselves in a tricky position if the employee can overturn the presumption.  For this reason, it is imperative that employers fully understand the benefits and limitations of rebuttable presumption of intoxication.

What do state laws say about rebuttable presumption?

Let’s take Arkansas as an example.  Its workers’ compensation law explicitly lays out that “compensable injury” does not include an injury where the accident was substantially caused by the use of alcohol, illegal drugs, or prescription drugs used contrary to a physician’s orders.  It then states in §11-9-102(4)(b)(iv): “The presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders shall create a rebuttable presumption that the injury or accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders” (emphasis added).  So what must an employer do to receive the benefits of a rebuttable presumption defense in Arkansas?  Prove that alcohol or drug use was the cause of an accident.  And how does he or she do that?  All it takes is showing the presence of alcohol, illegal drugs, or prescription drugs used contrary to a prescription.

Many other states have similar laws, although each law’s wording may vary slightly from state to state.  For example, California workers’ compensation law allows for denial of benefits when intoxication caused the accident; however, it does not explicitly create a rebuttable presumption of intoxication based solely on a positive drug or alcohol test.  In such situations, a drug test alone is not sufficient to deny a workers’ compensation claim for intoxication.  So how should employers proceed?

How to Prepare a Complete Defense

Even in states that offer a clearly worded rebuttable presumption of intoxication defense, the following items can help create a more complete defense.  This is especially important if an employee is able to present enough evidence to cause a judge to doubt whether substance abuse truly caused an accident.  And for employers in states that do not explicitly create this defense, the following is non-negotiable in order to deny unwarranted workers’ compensation claims and maintain your bottom line.

  1. Create a written drug-free workplace policy and enforce it.  If you do not communicate and enforce workplace policies, then you cannot rely upon the benefits of such policies.  List the consequences of substance abuse, including the possibility that workers’ compensation claims may be denied if substance abuse is found to have caused the accident.
  2. Implement supervisor training and employee education programs.  Before an accident occurs, supervisors need to know how to identify, articulate, and document signs of substance abuse.  As well, regular employee education sessions communicate the seriousness with which you treat substance abuse in the workplace and leaves no room for doubt.
  3. Conduct drug testing as soon after the accident as possible.  If you wait to conduct testing until days or weeks later, there is no point.  Even if you are using a testing method that can detect past use, it would be very difficult to argue that the detected drug use surrounded the day of the incident.  Testing methods, such as urine and oral fluid, can only detect recent use.  When conducted as soon as possible after an accident, this creates a stronger defense that substance abuse was the cause of the accident.
  4. Follow up drug testing with an investigation and question co-workers and supervisors.  Were there signs of substance abuse?  Was there reasonable suspicion to justify the test?  If supervisors and co-workers can corroborate the results of a drug test, it will be even harder for a substance abusing employee to challenge a rebuttable presumption defense.

Conclusion

Rebuttable presumption is just that, a presumption.  It comes before all the facts are gathered.  Back it up with the facts to create a solid defense.  This creates a safer workplace and redirects money from unjustified workers’ compensation claims back to your bottom line.  It also illustrates the importance of consulting a drug testing expert when implementing or updating a drug-free workplace policy.  While a generic policy may accomplish the bare minimum, it will not provide the framework to take advantage of all the opportunities available to increase the return on investment of your drug testing program.  And in some cases, it may even cost you.

[i] Report on 2015 California Workers’ Compensation Losses and Expenses. WCIRB California.

By Andrew Current of the Current Consulting Group, LLC
Andrew Current, Compliance Director for Current Consulting Group, LLC, researches state and federal laws, manages Current Compliance, an on-line state laws database, and serves as the managing editor of the e-newsletter State Drug Testing Laws Monthly as well as other publications.