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I have an employee who recently was injured on the job and was taken to OCCUPATIONAL Health for medical treatement. As a standard procedure, he was drug tested and tested positive for marijuana. Do we still have to cover the cost of his medical treatment that we are concidered a first aid claim and not Workers Compensation?
Thanks.
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| If the injury happened on the job the company is responsible for the injury, this is California. The question now is do you have a drug testing policy?
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| Yes, drug testing is part of out pre-employment and on the job injury policy.
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http://www.calchamber.com/HRC/LaborLawAnswers/HealthandSafety/WorkersCompensation/DrugTesting.htm
When an employee is intoxicated by alcohol or drugs at the time of the injury, it is considered to be an affirmative defense to his/her workers’ compensation claim, and as a result, may bar compensation to the applicant. That is determined by a judge, however, not the employer.
Procedurally, the claim must be filed, and the defense asserted with the Workers’ Compensation Appeals Board before or no later than the mandatory settlement conference, which may not occur until several months or even years after the date of the injury. The employer must prove the impact of alcohol/drugs on the injury at the time of trial; therefore, it is critical to gather as much evidence as possible at the time of the injury.
It also is possible that the use of drugs/alcohol may not be a direct cause of the accident, or even the injury. But the intoxication may be grounds for “apportionment” — in other words, the workers’ compensation amount the employee receives for the injury will be reduced accordingly.
Liability and Coverage
It also is possible that the employee testing positive for drugs/alcohol may have nothing to do with the injury. Workers’ compensation insurance is a no-fault insurance system — the employer has limited absolute liability for work-related illnesses and injuries, and employees do not have the right to sue the employer in court for those damages.
Therefore, any reasonable doubt as to applicability of coverage generally is resolved in favor of coverage.
In this situation, the employee was hit on the head by falling debris, and any state of intoxication might not have made a difference. A completely different argument could be made if the employee was operating equipment and was under the influence of drugs/alcohol so as to cause an accident.
When an employee tests positive for drugs/alcohol after a work-related injury, conduct a timely and full investigation in preparation for future hearings.
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