Will I Be Drug Tested for Workers’ Compensation in New York?

Workers’ compensation is a form of insurance that can be invaluable for people who suffer injuries or illnesses which arise from performing job-related duties.

Although workers’ comp can provide coverage for medical treatment and supplementary lost wages, regardless of who’s at fault, there are situations where injured workers may face barriers to recovering the benefits they need. One situation involves employer drug testing.

Workers’ Comp Process & Drug Testing in New York: Potential Issues

Workers who suffer injuries must initiate the workers’ compensation process by reporting any accident, injury, or illness to their employer. What happens next depends on the circumstances involved, but will generally involve workers being treated in an emergency room, urgent care clinic, or by a workers’ comp doctor chosen by their employer.

In either case, employers may have policies requiring injured workers to be drug tested as part of their initial evaluations following a work accident. Employer required drug tests can raise many challenges in a workers’ comp case, which is why contacting an experienced workers’ comp attorney as soon as possible after your accident can help you navigate the process ahead, and effectively handle any complexities that arise.

Common issues associated with workers’ comp drug tests include:

• Specific workplace policies – Because employers may have different policies when it comes to workplace accidents and drug testing, it is important to understand what those policies are in your workplace. While most employers require drug testing after a work injury, for example, some may require drug tests immediately after an accident, rather than at an initial medical evaluation, even if workers aren’t in need of emergency medical evaluations or treatment.
• Putting benefits at risk – Should workers test positive for controlled substances, they may be at risk of losing their workers’ comp benefits, including benefits for medical care and lost income, which are often critical to ensuring the health of injured workers and their ability to support themselves and their families when their injuries cause them to miss work. Section 10 of New York State Workers’ Compensation Law states that workers can be denied benefits if their injuries are caused solely by intoxication, but the law also presumes injuries are not caused solely by intoxication (§21(4)).
• Proving intoxication – There is some case law on positive drug tests and workers’ compensation in New York. One case involves a worker who tested positive for marijuana when a drug test was performed 18 hours after a workplace accident. Though the worker stated he did not consume marijuana on the day of the accident, and co-workers, supervisors, and EMTs described his condition as normal, the employer and workers’ comp carrier appealed the case. Ultimately, the court ruled that in order to overcome the state’s presumption that intoxication was not the sole cause of an accident, employers must show that “all evidence and reasonable inferences allow no other reasonable conclusion” that intoxication is the sole cause of an accident and worker injury. In short, there is a high burden employers must overcome.
• Employment risks – In addition to putting workers’ comp benefits on the chopping block, positive drug tests, or drug test refusals, may further put workers at risk of losing their jobs entirely. While employer policies can vary, some may specifically prohibit the use of drugs, including some lawfully prescribed medications, by workers who perform certain job duties, such as driving a commercial vehicle or operating a specific piece of equipment that can put others in danger when used improperly. When it comes to test refusals, the New York Workers’ Compensation Board has ruled in the past that refusing to comply with employer-required drug testing policies following a workplace accident can be grounds for termination. In many case the board has ruled that worker’s compensation benefits are still owed, even if a termination occurs based on refusal to take a drug test. However, the Board has taken a more discerning approach in recent years in an effort to determine enforceability of employer policies that may discourage employees from pursuing workers’ comp cases. The board has found that if a general policy has a disparate effect on those exercising protected workers comp rights it may be considered unlawful and discriminatory.
• Prescription medications – If you take a prescription medication, understanding your employer’s policy is important. Some drugs can be used effectively and safely by workers under the supervision of a treating medical professional, and in compliance with an employer’s policies. As such, showing proof of a valid prescription could resolve any potential barriers to benefits. Because some employers may have specific rules and regulations regarding the use of prescribed medications, however, even a lawfully prescribed drug could create problems during the workers’ comp process for some injured employees.

Help from Experienced New York Workers’ Comp Attorneys

Not every employer requires drug testing after a workplace accident, and a positive drug test or drug test refusal in and of itself does not mean benefits will be barred automatically. However, it can place workers’ comp benefits, and in some cases, employment, at risk, and create additional hurdles for injured workers to address and overcome in order to obtain the benefits they need.

At The Perecman Firm, P.L.L.C., our firm has earned national recognition for our work representing all types of injured workers following workplace injuries, including those resulting from construction accidents. If you have questions about a recent workplace accident, your rights, and how our team can guide you through the journey ahead, call (212) 577-9325 or contact us online.