Drug Testing and Workers Comp

15 Jan 2015

... Workers Comp must be considered in drug testing programs, don't expose your business to liability and don't leave money on the table.

Drug Testing and Workers' Comp: What’s the Connection?

By Bill Current

The Current Consulting Group 

Workers' compensation laws often play a critical role in workplace drug testing. Some states use the promise of workers' comp premium discounts to encourage employers to conduct drug testing.  Compliance with these laws is typically voluntary. Additionally, however, some states make it possible for employers to move to deny or reduce workers' comp benefits if they can connect an accident with drug use via a positive drug test result. 

However, too many employers fail to research workers’ compensation laws when developing a drug testing program. Yet, ignoring workers’ comp laws can be risky, especially for companies in safety-sensitive industries where accident rates are higher than normal. Despite what a state’s drug testing law may require, a state’s workers’ comp law may include very specific drug testing requirement in order of an employer to be able to move to deny benefits when contesting a workers’ comp claim. 

This article will take a look at which states have workers' comp laws related to drug testing. Before we review these states, we will review the list of states that offer workers' comp premium discounts as some of these "voluntary" laws double as the de facto standard required as part of a state's workers' comp denial/reduction law. 

Workers' Comp Premium Discounts

Eleven states have voluntary drug testing laws that apply to non-industry specific employers.  Some of these states mandate the use of specific testing procedures, while others leave it up to insurance providers to determine how drug testing will be conducted.  Let’s take a look at the first group of states, those that establish procedural regulations on their own: 

  • Alabama
  • Arkansas
  • Florida
  • Georgia
  • Idaho
  • Mississippi
  • Ohio
  • South Carolina
  • Tennessee
  • Virginia
  • Wyoming 

State with Workers' Compensation Laws

There are 46 states plus the District of Columbia (and the territory of Puerto Rico) that have workers’ compensation laws that provide benefits reduction or denial either explicitly for drug or alcohol use or more implicitly for misconduct or gross misconduct.  In the case of those more implicit laws, misconduct or gross misconduct is often defined in a different law and includes things such as intoxication, on-site drug or alcohol use, or failing to follow employee standards as set out in employment handbooks or agreements.  

State Law Compliance Required

Of the 46 states and other jurisdictions that offer benefit reduction or denial related to intoxication, 14 require compliance with either the voluntary workplace drug testing law of that state or with a special set of requirements established specifically by the workers' comp law.  For example, Florida, Georgia, Idaho, Mississippi, Tennessee, and Utah all require compliance with the state’s voluntary workplace drug testing law in order to attempt to reduce or deny workers’ comp benefits.  

Colorado, Kansas, Louisiana, Ohio, Texas, Virginia, and West Virginia require compliance with specific requirements that only apply to each state's respective workers’ comp law.  For example, Kansas has a complex set of rules that address blood alcohol content levels, GC/MS laboratory confirmations, and advance notice of workplace testing policy, to name a few of the conditions.  North Carolina, interestingly, requires compliance with both state and federal laws, but only when they apply to a given situation or industry. 

Additionally, 12 states and Puerto Rico have mandatory workplace drug testing laws.  These states have workers’ comp laws that do not make any special requirements for benefits reduction or denial, but would obviously require compliance with the mandatory workplace drug testing law in order to deny benefits.  They are Connecticut, Hawaii, Iowa, Maine, Maryland, Minnesota, Montana, Nebraska, Oklahoma, Oregon, Puerto Rico, Rhode Island, and Vermont. 

Federal Law Compliance Required

Only three states specifically require compliance with federal guidelines relative to workers’ comp.  Alabama calls for compliance with 49 CFR Part 40 or equivalent standards.  Illinois also cites DOT regulations, but adds National Labor Relations standards.  And North Dakota requires federal cutoff levels, adding a requirement for tests to be conducted by a physician, qualified technician, chemist, or registered nurse.  

No Explicit Drug Testing Requirements

That leaves 17 states and plus the District of Columbia that offer workers’ comp benefits reduction or denial for intoxication, but do not necessarily require specific testing conditions in order to qualify.  Some of these states have voluntary laws: Alaska, Arkansas, South Carolina, and Wyoming.  

Conclusion

It's never enough to just research a state's drug testing law and assume you have all the information you'll need to be in compliance. Very often, workers' comp laws (as well as unemployment comp laws) can have a direct bearing on how drug testing should be conducted in a given state.  Employers ignore these laws at their own peril. 
____________________

By Bill Current 

Bill Current is the president and founding partner of the Current Consulting Group. He also maintains a comprehensive database of state drug testing laws, which is available by subscription at StateDrugTestingLaws.com. Contact Bill at bcurrent@currentconsultinggroup.com for more information about how workers' compensation laws can affect workplace drug testing programs.