What You Need to Know About Workers’ Comp Drug Testing
The Pennsylvania Workers Compensation Act guarantees compensation for medical treatment and lost wages associated with work-related injuries and disease. However, there are some caveats when it comes to drug and alcohol use.
Pennsylvania law does allow employers to deny workers compensation claims for injuries caused by an employee’s use of illegal drugs or alcohol intoxication.
It is very likely that claimants will be required to undergo a post-injury drug test prior to the approval of their workers’ compensation claim. This is especially true for employers who have strict drug and alcohol conduct policies, regularly drug test their employees, or conduct random drug screenings. There are a series of federal and state law exceptions to these rules.
Workers Compensation and Drug Testing Laws in Pennsylvania
While workers compensation is almost universally guaranteed to employees in Pennsylvania, exclusions do exist.
Most notable is that listed in Article 3, Section 301, (a), of the Pennsylvania Worker’s Compensation Act, which states “no compensation shall be paid when the injury or death is intentionally self-inflicted or is caused by the employee’s violation of law, including, but not limited to, the illegal use of drugs.”
Pennsylvania law places the burden of proof on the employer to demonstrate employee intoxication at the time of injury, and that intoxication was the cause of injury.
Following a serious workplace injury, an employer may require the injured employee to take a drug test in order to determine whether alcohol or illegal drug use caused the injury. In the event of a positive drug test, an injured employee’s claim may be denied.
Does Workman’s Comp Always Require Drug Tests?
Because of federal regulations related to post-injury drug testing, claimants are not always subject to workman’s comp drug tests.
In May of 2016, the Occupational Safety and Health Administration (OSHA) instituted a series of new anti-retaliation provisions related to post-incident drug testing in workers compensation cases. OSHA explicitly forbids “employers from retaliating against employees for reporting work-related injuries or illnesses,” by “drug testing employees for reporting work-related injuries or illnesses without an objectively reasonable basis for doing so.” While this provision does not constitute a blanket prohibition of post-incident drug testing, it does specifically outline the types of permissible workplace drug tests.
Examples of drug tests permitted by OSHA anti-retaliation provisions are:
- Random drug testing
- Drug testing unrelated to the reporting of a work-related injury or illness
- Drug testing under a state workers’ compensation law
- Drug testing under other federal law, such as a U.S. Department of Transportation rule
- Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries
Employers who violate this provision by engaging in retaliatory post-accident drug and alcohol testing are subject to OSHA citations. As a result, employers may only conduct post-accident drug tests when there is a legitimate reason to believe that illegal drugs or alcohol were responsible for the injury.
What Kind of Drug Test Does Workers Comp Use?
The state of Pennsylvania is one of few states without any laws regulating or restricting drug testing in private employment.
If an employer wishes to drug test their employees, whether related to a worker’s compensation claim or not, the type of drug test used is entirely at the discretion of the employer. As such, there is no specific type of workman’s comp drug test in Pennsylvania.
Medical Marijuana and Prescription Opioid Use in Pennsylvania Worker’s Compensation
Pennsylvania law has specific language in regards to both Medical Marijuana and Opioid use when it comes to workers’ compensation claims.
As of May of 2016, the Medical Marijuana Act (MMA) allows patients in the state of Pennsylvania to use medical marijuana if they suffer from a series of approved medical conditions, like cancer, ALS, or Parkinson’s disease.
However, the Act includes employer protections which state, “[t]his act shall in no way limit an employer’s ability to discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted for that position” or “require an employer to make any accommodation of the use of medical marijuana on the property or premises of any place of employment.”
These protections mean that employees injured at work while under the influence of medical marijuana, may be denied workers compensation if intoxication was the proximate cause of injury.
Prescription medication, such as opioids, cannot be used to deny a workman’s comp claim unless the injured employee had misused the medication or had specific restrictions on activities they could perform while under the influence of their medication.
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Contact Krasno, Krasno, & Onwudinjo if you’re navigating a workers’ compensation case in Pennsylvania and are worried about how drug and alcohol use may affect it.