July 9, 2018
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:
- Establish an external cause for her injury (example given by the court: she was “pushed by an unruly patient”), or
- Show the marijuana in her system was just inactive residue of fairly recent usage.
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:
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