Workers who report an on-the-job injury may not be subject to mandatory drug testing if a new rule from the Occupational Safety and Health Administration that prohibits blanket post-injury drug tests withstands a court challenge from employers.
Though OSHA implemented the limits on drug testing to limit retaliation, the rules limiting drug testing also help preserve employee doctor choice, which is an integral part of workers’ compensation law in Nebraska and other states. Many employers will inform employees that they must get drug tested at an occupational medicine clinic if they have a work injury even if workers have a right to see their own doctor. This can lead to employees being forced back to work too soon and or not receiving sufficient treatment for their work injuries. Both the fear of retaliation and the circumvention of doctor choice rules lead the costs of work injuries to be borne by employees, which is a major concern of the Department of Labor.
I recently received the following inquiry from a potential client via the Internet:
“I had an accident at work and broke my hand. I went to the doctor the same day and was treated for it. While I was there I never gave a urine or blood sample. The next day my boss asked if I would take a random test and I declined because they can’t prove I was under the influence at the time of the accident, not saying I was. So was that the right or wrong thing to do?”
Before responding to this worker’s situation, I would ask questions that included the following thoughts, depending on where the worker was within the workers’ compensation and employment process:
Where was the worker from, as laws vary from place to place?
Who is/was the worker’s employer?
What was the worker doing when injured?
What is the employer’s policy on random drug testing?
Is the worker still employed at the company?
Is the worker receiving workers’ compensation benefits?
Knowing those specifics would help tailor my response to the circumstances, but generally speaking, it’s not a good idea to disobey a supervisor’s request. However, depending on the circumstances here, this worker might have Continue reading →
Failing a drug test may not disqualify you from receiving benefits
Many employers require their employees to get urine tested after a work injury. If this happens to you, here are some things you should know.
1. If you are sent to a doctor’s office for a urine test, you do not have to – and probably should not – treat with that doctor for your injury.
Many occupational medicine offices, such as Concentra, offer drug testing to employees. However, in order for such a clinic to be the doctor for your workers’ compensation injury, you need to tell your employer that you chose that doctor instead of your family doctor. Choosing an occupational medicine clinic to treat your workers compensation injury would not be smart. Concentra has been accused with conspiring with Walmart to limit the care of their injured workers. Separately an occupational doctor in Lincoln (not affiliated with Concentra) will often-times change a diagnosis of injury from “work-related” to “non-work-related” with no medical evidence. The potential consequence of such a finding is that an injury that is found to be personal is not covered by workers’ compensation. If the injury is bad enough <!–more–>that you are unable to work completely, having a non-work-related injury that completely disables you cuts you off from both workers’ compensation and unemployment benefits.
If you let your employer steer you to an occupational medicine outfit, an experienced Nebraska workers’ compensation lawyer may be able to help you change doctors and be covered by workers’ compensation.
2. Failing a drug test does not disqualify you from workers’ compensation benefits if you weren’t intoxicated at the time of the accident.
Failing a drug test does not disqualify you from receiving benefits. An employer must show that your intoxication was the sole cause of your work injury. This is difficult, but not impossible. However, failing a drug test may delay payment of lost-time benefits (TTD) and limit your permanent benefits if your employer can argue that, but for you failing a drug test, that they could have accommodated any work injuries you have or might have had. The question of whether your employer could have accommodated your injury, but for you failing a drug test, is determined by a judge on case-by-case basis. If you have been fired because of a failed drug test and are not receiving workers’ compensation benefits because you can’t work, you should talk with a lawyer who knows workers’ compensation.