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July 9, 2018

Injured from fall, tested positive for weed: Does she get workers’ comp?

Latest posts by Atlantic Research Team (see all)

Judges split 2-1 on whether an employee who was injured at work should receive workers’ comp benefits after testing positive for weed. Which side prevailed?

Bonita Brinson was an employee of Hospital Housekeeping Services LLC. As the name of the company implies, Brinson was placed at a hospital as a housekeeper.

One day at work, Brinson rushed to alert the nurse’s station that a patient had coded and wasn’t breathing. She slipped and fell, dislocating her shoulder. A post-injury drug test was positive for marijuana metabolites.

Brinson had signed her employer’s policy stating that “all employees that are injured are subject to a drug test.”

Because of the positive test, Brinson’s workers’ comp claim was denied. A Judge of Compensation Claims (JCC) also denied her benefits request. Recently, a Florida appeals court heard her case.

Court: She didn’t make her case

Florida’s workers’ comp law “presumes that the injury was occasioned primarily by the influence of the drug upon the employee” when an injured employee tests positive for drugs after an incident.

The law allows the injured employee to rebut the presumption by presenting convincing evidence that drugs didn’t contribute to the injury.

In this case, the majority ruled Brinson attempted a rebuttal, but failed. The court listed two strategies that it said “might have rebutted” the presumption:

Brinson’s rebuttal consisted of testimony from two medical experts who said the drug tests showed only the presence of metabolites, but don’t show drugs active in the bloodstream caused impairment. Both doctors also said they had no opinion on whether the drugs in Brinson’s body contributed to her injury.

The majority also noted that Brinson acknowledged her employer “had a drug-free policy.”

For those reasons, the court upheld the JCC’s ruling that Brinson shouldn’t receive workers’ comp benefits.

The dissenting judge quoted Florida law which says an employer may require a drug test from an injured employee only “if the employer has reason to suspect that the injury was occasioned primarily by the use of any drug.” The judge said, given the facts in Brinson’s case, there was no evidence that there was reason to suspect Brinson was impaired by drugs. Therefore, testing Brinson was unauthorized.

(OSHA’s electronic recordkeeping rule contains a provision against drug-testing any time an employee is injured.)

The dissent also notes that Brinson’s employer hadn’t adopted a statutorily defined drug-free workplace program. If it had, it would have had latitude to drug test injured employees. “But the employer here jettisoned its attempt to establish a drug-free workplace program,” the dissent notes.

The final paragraph written by the dissenting judge is worth noting, because it sums up the status of workplace drug-testing today amidst state marijuana laws:

“All this said, marijuana intoxication is a serious matter of public health and a workplace safety concern that employers face daily. The confluence of lawful marijuana use (medical in Florida, medical/recreational elsewhere), the lack of scientific standards or chemical tests for marijuana impairment, and the interplay of federal enforcement policy make the future application of workplace drug tests challenging, to say the least.”

Retrieved from Safetynewsalert.com

Related Training DVDs:

Slips, Trips & Falls Training Video

workers’ comp Shows employees the situations that can lead to slips, trips and falls, and what they can do to avoid or prevent these accidents. View Product

Workers Compensation Training Video

workers’ comp Your organization is required to carry workers’ compensation; train your workers with Compensation program and control the costs. View Product

Drug and Alcohol Abuse for Employees Training

workers’ comp Discuss the hazards of substance abuse, how employees can avoid them and what they can do to help keep their workplace drug and alcohol-free. View Product

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