It may seem to be common sense to assume that an employee fired for a positive drug test will be denied unemployment or workers compensation claim, but that isn't always the case. Some states have very specific, detailed rules that must be followed in order for employers to deny unemployment claims. Workers compensation is even more rules specific. In fact, there are currently 18 states with "rebuttable presumption of intoxication" laws that provide a “defense of intoxication” as a reason companies can refuse to pay workers’ comp benefits if an employee’s drug use contributes to his/her injuries. Get more information on defend against unemployment and workers comp claims on this DATIA (Drug and Alcohol Testing Industry Association) Webinar.
As an employer, it is essential to have a clear understanding of how your company will handle on the job accidents, positive drug tests, or other work related incidents that may open you up to liability. You should have as a part of your company policy a very clear drug and alcohol policy that thoroughly addresses all areas of concern such as when testing will be performed, how results will be handled, will random testing be done, what the consequences of a positive test will be, EAP (employee assistance program) information, etc.
Another issue that can lead to exposure to liability is "Random Reasonable Suspicion" Tests...If you just read that and thought to yourself, "hey wait...those are 2 different things", then you are absolutely correct! Unfortunately, we get calls everyday asking for just that. There is liability associated with singling out a person and giving them a random test that really is not random; there is also exposure for a supervisor ordering a reasonable suspicion test when they have not been trained to do so. This is especially true since there are "best practices" and guidelines for what constitutes "reasonable suspicion". Just recently, we received a call from a manager wanting to set up a reasonable suspicion test because a co-worker had called the manager and said another co-worker seemed to be acting funny...this is no joke and happens regularly. It is also very likely that it would not be considered grounds for a reasonable suspicion test.
Anyone can sue and these days, the likelihood that you will be sued or subject to a claim has shifted to not "if but when". It is more important than ever to have the right policies and proceedures in place and to insure supervisors are properly trained to handle situations in a way that will limit your exposure and at least help you sucessfully defend your actions in the case of a lawsuit, workers comp or unemployment claim. Employers can find more tools and resources on the NDS Blog.
National Drug Screening not only provides a streamlined platform for employers to order and manage their drug testing, NDS also offers assistance in developing or reviewing drug free workplace policies and provides both DOT and non-DOT Supervisor reasonable suspicion training.