When someone is injured at work, the worker’s compensation system exists to help them cover expenses and recover from the injury. It is a compromise between protecting the rights of the employer and the rights of the employee, making sure that neither is given too much leniency and that neither infringes on the rights of the other.
The worker’s compensation system includes provisions to allow a workplace to become a Drug Free Workplace: §440.102. In order to be considered a Drug Free Workplace an employer must notify employees and job-applicants in writing of the specific drug free workplace policies and procedures, then the employer may test applicants during the hiring process as long as they maintain consistency in testing everyone. Employers may also test current employees based on reasonable suspicion, to confirm ongoing fitness for duty, and to follow-up on employees who have entered into drug rehab programs since the beginning of their employment with the company.
As an attorney who practices worker’s compensation law, I come across questions of drug testing when an employee feels their claim has been falsely denied, or when an employer feels that a claim should be denied. Because the worker’s compensation system exists to find middle ground which is fair to both, every situation is unique, but they’re all worth examining against the law to make sure that the law is being upheld.
For example, in some cases the employer may not follow the prescribed procedures for collecting the material for analysis of drug usage, or the sample may be mislabeled or otherwise contaminated. In this kind of situation, where an employee is determined to have a “false positive” for drug use, that person is entitled to a confirmation test. If this is not performed, and they are subsequently fired or denied worker’s compensation benefits, they may have a claim against the employer.
On the other side, if an employer tests an employee in a worker’s compensation claim, but later finds out that the employee lied on the test paperwork or used illicit procedures to “beat” the test and fraudulently receive worker’s compensation benefits, that employer is entitled to fire the employee, possibly recoup expenses through civil litigation, and report the person to the Bureau of Worker’s Compensation Fraud for prosecution. Committing worker’s compensation fraud is a 1st degree misdemeanor under Florida state law.
One exception which can create a grey area in a worker’s compensation claim is a positive result for prescription medication in the drug test. Under FL law, the employer must inform the person being tested as to what drugs will be evaluated by the test, and the person has to reveal when submitting to the test what medication, vitamins, or other substances they might be taking. This communication creates an opportunity on both sides to be forthcoming with information. The issue may arise if someone from another state with different prescription medication laws is involved in a worker’s compensation claim in Florida. If their prescription is legal under their own state statutes, but illegal under Florida’s, what will be the outcome of evaluating their worker’s compensation claim? A perfect example of this is the medicinal marijuana laws which have been enacted in 16 states and Washington DC. Currently under Florida law, a person prescribed medicinal marijuana in another state could be denied a worker’s compensation claim filed in Florida. To my knowledge, this has yet to be an issue, but we can expect to see it arise in the future, similar to the way that interstate laws about other prescription medications have been addressed. The Council of State Governments Knowledge Center has reviewed several interstate drug laws, and discusses how doctors and law enforcement are beginning to work together to prevent misuse of prescription medications. The questions are posed: who is abusing interstate prescription laws, and who has medically valid claims? What rights will Florida have to protect their own citizens’ rights in the face of the rights of citizens of other states?
On our own turf, Gov. Rick Scott recently signed an executive order submitting state employees to randomized drug testing, which many consider questionable under the Drug Free Workplace statute. Typically, employers must have documented reasonable suspicion in order to drug-test an employee unless the person is in a safety-sensitive position; specifically a position where they may be a risk to public safety. The American Civil Liberties Union (ACLU) is protesting the constitutionality of the order, which was scheduled to go into effect last week, and it will be interesting to keep watch on whatever developments unfold in upcoming months.
The bottom line is: workers have the right to a safe workplace, balanced with the responsibility to perform the duties they were hired for to the best of their abilities. Employers have an obligation to provide a workplace that is safe and fair. If these rights and responsibilities come into conflict or question, especially in the case of someone’s injury, legal guidance is necessary to sort through the details. Usually, the issue of drug testing in workers compensation claims is straightforward under the law, but there are times when the complications of grey areas of law create a potential violation of someone’s rights – whether it’s the employer or the employee. In all cases, upholding the rights of each under the law is the most critical thing.